ADMINISTRATOR-GENERAL Vs. SACHINDRA KUMAR ROY

JUDGEMENT

(1.) This is an appeal by the landlord in a suit for additional rent for additional area in possession of the tenant. The plaintiff's case is that the defendants predecessor, Gour Kishore Roy, in the year 1806, executed a kabuliyat in respect of the tenure whereby he paid a rent of Rs. 35 per annum for an area of 67 bighas odd. It is stated that in the Record of Rights which was finally published in 1907 the area in possession of the tenants was found to be over 1,800 bighas. The defendants denied the genuineness of the document of 1806. The trial Court held that the document Ex. 5 was a genuine document. The Court decreed the suit and allowed an additional rent of over Rs. 800. In appeal, the decision was reversed, the Court holding that Ex. 5, the alleged kabuliyat of 1806, was at best a memo executed by the tenant and that it was not worthy of belief that the tenant who had got settlement of 67 bighas in 1806 would venture to hold over 1,800 bighas of land for a long time. The Court held that the area given in Ex. 5 could not be accepted as correct. The Court also considered that the tenure in question which is recorded as Kaimi and Chirasthayi is one which is not fit for enhancement. In appeal to this Court, the first point taken is that the Court of appeal below went wrong in considering the document Ex. 5. This document was produced in a title suit of 1909. That was a suit instituted by the defendants against the present plaintiff, claiming that certain mouzas appertained to the Taluk Gouri Kishore Roy. The landlord denied the allegation, and in support of his case produced the kabuliyat of 1806 to show that only two mouzas were leased by the same. In that case the Courts accepted the kabuliyat of 1806 as a genuine document and upon the strength of it dismissed the suit. The Court of appeal below stated, "the plaintiffs however are now at great pains to show that the kabuliat is not a genuine document." The Court held that the kabuliat was a genuine document. It is urged on behalf of the plaintiff that the finding in the suit of 1909 is res judicata in the present case. The case in Aghore Nath Mukerjee V/s. Sm. Kamini Debi (1910) 11 C L J 461 was cited in support of the proposition. On the other side, the cases in Chunder Coomar Mondul V/s. Nunnee Khanum (1873) 19 WR 322, Gopika Raman Roy V/s. Atal Singh AIR 1929 P C 99 and Kandan Majhi V/s. Kulada Prosad Roy (1935) 163 I C 631 were cited.

(2.) On hearing the learned advocates on both sides, we are of opinion on the facts of this case that though the finding in the suit of 1909 that the kabuliat of 1806 was genuine may not be res judicata in the present case, yet that finding is evidence of the highest value and as such ought to be considered in the present case. The Court of appeal below, has misdirected itself on this point. Further it appears to us that the Court of appeal below has gone wrong on the supposition that this was a suit for enhancement of rent. It is not a suit for enhancement of rent but a suit for additional rent for additional area under Section 52. In our opinion the decree of the Court of appeal below cannot be sustained. It must be set aside and the case remanded to the Court of appeal below for fresh hearing according to law. For the respondents it was urged that the suit in any case is barred under the provision of Section 109, Bengal Tenancy Act. The matter arises in this way. The predecessor of the plaintiff instituted proceedings under Section 105 and Section 106 after the record of rights of 1907. There was no trial of the proceedings. The plaintiff's suit was withdrawn. The present suit was instituted in 1933. Under the provision of Section 109 as it existed prior to 1929 a suit like the present one would not be maintainable. But in 1929 an amendment came into force by which it was provided: Nothing contained in Section 109 shall debar a civil Court from entertaining a suit concerning a matter which was the subject matter of an application under Section 105 or Section 105-A or of a suit under Section 106, if such application or suit has been dismissed for default or withdrawn.

(3.) It was urged on behalf of the respondents that since the proceedings were instituted and were withdrawn before the amendment the plaintiff cannot maintain the suit instituted in 1933. It was held under the old law that the disability remained even though the previous proceeding was dismissed for default, or withdrawn. The amendment which came into force in 1929 provided to remove that disability in the case of applications which were dismissed for default, or withdrawn. The question is from what point of time the proviso to Section 109 will apply to suits. On a plain reading of the words, it appears clear that the proviso comes into effect from February 1929 like all other amendments of the Bengal Tenancy Act. It is merely a matter of removal of a disability. The matter was discussed by M.N. Mukerji, J. in 1935 in Debendra Lal Khan V/s. Sudharam Ray . He held that the proviso should be taken as operative from the point of time when the enactments came into force. Suits instituted subsequent to February 1929 would therefore have the benefit of the proviso. The same view was taken by Nasim Ali and Edgley, JJ. in Suprabhat Chandra V/s. Bhupati Bhusan Mandal AIR 1986 Cal 307. There also an application was filed before the amendment and it was withdrawn. The suit was instituted after the amendment. It was held that the suit was maintainable under the proviso to Section 109. The fact that the application in that case was withdrawn after February 1929 is a matter of no importance. The matter of importance is that though the application was made before the amendment if the suit be instituted after the amendment the suit is maintainable under the proviso. The objection under Section 109 is therefore not valid. As stated above the appeal will be remitted to the lower appellate Court for fresh hearing according to law. Costs will abide the result. Hearing fee two gold mohurs. B.K. Mukherji, J.