DEBENDRA LAL KHAN Vs. SUDHARAM ROY

JUDGEMENT

(1.) The plaintiffs are the appellants in this appeal. The principal defendants were in occupation of some lands which belonged to the plaintiffs and their co-sharers, the pro forma defendants. These lands were recorded in the record-of-rights as being lands wherein the plaintiffs had a 4-anna share and it was also stated therein that they were assessable to rent. On that the plaintiffs applied under Sub-section 105 and 106, Ben. Ten. Act, for correction of the records alleging that they had a 5-anna share in the lands and not a 4-anna share as stated in the record-of rights. In that application they prayed for a declaration of their title to a 5-anna share and for khas possession in respect of that share and, in the event of such khas possession not being allowed, for settlement of a fair and equitable rent for the lands in respect of that share. The proceedings instituted on the basis of this application were struck off on 7 December 1917 with the following order: "No action taken: deficit process fee of Rs. 1-12-0, not paid; case struck off." Thereafter the plaintiffs instituted a suit for declaration of title on the allegation that the entry in the record-of-rights was wrong and they also prayed for khas possession and for other reliefs. This suit was eventually dismissed by the Court, the Court holding that Section 109. Ben. Ten. Act, operated as a bar to the suit. No question in this appeal arises upon the suit aforesaid or upon the result thereof, and so it will not be necessary to refer to it again hereafter. Thereafter the plaintiffs instituted the present suit in which they took their stand upon the entry in the record-of-rights and asked for assessment of rent in respect of their 4-annas share as recorded therein and also for recovery of rent at the assessed rate for certain years previous to the institution of the suit Defendant 1 took several pleas-some in the nature of pleas in bar and others on the merits; but these pleas were all overruled and the Munsif made a decree in the plaintiffs favour holding that the plaintiffs were entitled to a rent of Rs. 14 for the lands per year in respect of their 4-anna share and allowing the plaintiffs arrears of damages for use and occupation at the said rate for three years immediately preceding the date of the institution of the suit.

(2.) From this decree the principal defendants preferred an appeal to the District Judge. The learned District Judge held that the present suit was barred by reason of the provisions of Sec. 109, Ben. Ten. Act. To his reasons on which this conclusion of his is founded, reference will presently be made ; but it may be stated here that except as regards this preliminary point on which he dissented from the view which the Munsif had taken he agreed with the Munsif in other matters, namely in so far as the latter had decided against defendant 1 as regards his other objections. He held that the objection raised by the said defendant on the ground of limitation was entirely without force and that the rate of rent which had been fixed by the learned Munsif was fair and equitable. Being of this view, the learned Judge took as the basis of his decree the rate of Rs. 6 for the sixteen annas share of the lands which defendant 1 had admitted as the rental and on that basis gave the plaintiffs a modified decree. From this decree of the learned District Judge, the present appeal has been taken by the plaintiffs.

(3.) From what has been stated above, it would appear that the substantial question which arises for determination in this appeal is the question whether by reason of the application which the plaintiffs had made under Sub-section 105 and 106, Ben. Ten. Act, the present suit is barred in consequence of the provisions of Section 109 of that Act. It has to be stated here that before the suit was instituted the said Section 109, Ben. Ten. Act, was amended by the introduction into it of the proviso that is to be found now under the said section. The reason upon which the learned Judge proceeded in arriving at his conclusion as regards the bar afforded by Section 109, Ben. Ten. Act, may be summarized in the following words: He refers to Section 2, Clause (3), Ben. Ten. Act, in the first instance and then he observes: Under the old Section 109 the defendant had acquired a right not to have his jote assessed to rent as that was a matter in the Section 106 case.