RAJA RISHICASE LAW Vs. SATISH CHANDRA PAL

JUDGEMENT

(1.) This appeal has arisen out of a suit for assessment of fair and equitable rent payable on account of lands comprised in a tenancy. The claim in suit as made by the plaintiff was resisted by the defendant on various grounds, of which two only have to be mentioned for the purposes of this appeal. It was asserted by the defendant that Section 109, Ben. Ten. Act, as it stood before the amendment of the year 1928, was a bar to the suit, and that the final decision in a previous litigation (Title Suit No. 95 of 1917 in the third Court of the Subordinate Judge, Midnapore) operated as res judicata, so far as the merits of the plaintiff's claim were concerned.

(2.) It has to be mentioned that an application under Section 105, Ben. Ten. Act, was filed by the appellant along with his co-sharers on 22 December, 1916, for assessment of rent of the entire tenancy comprising 897 odd acres of land. The lands now in suit were included in the area mentioned above. The application under Section 105 was withdrawn. The present suit was instituted on 8 November 1932, after the amendment of Section 109, Ben. Ten. Act, came into force in the year 1929. The Court of first instance dismissed the plaintiff's suit, holding that it was not maintainable, and that the claim in suit was barred by res judicata. On appeal by the plaintiff, the decision of the trial Court on the question of the operation of the rule of res judicata was reversed by the District Judge. The learned Judge however agreed with the decision of the trial Court, on the other question relating to the non-maintainability of the suit, in view of the provision contained in Section 109, Ben. Ten. Act, as they stood before the amendment of the year 1928. The decree of dismissal of the suit passed by the learned Subordinate Judge in the Court of first instance was affirmed by the lower appellate Court.

(3.) In this appeal by the plaintiff, it was urged on behalf of the appellant that the law applicable to the present suit was the law in force at the date of its institution in the year 1932, and there was nothing contained in the provision of Section 109, Ben. Ten. Act, as it stood at that time which operated as bar to the maintainability of the suit. It was contended in support of the appeal that the Judges in the Courts below were not right in holding that the provisions of Section 109 as they stood before the amendment of the year 1928, were applicable to the case. The case for the respondent in this Court was that the Courts below have rightly held that the plaintiff's suit was not maintainable; and that the District Judge in the Court of appeal below has taken an erroneous view of the judgments of Courts in the previous litigation in holding that the plaintiff's suit was not barred by the operation of the rule of res judicata. It was contended on behalf of the respondent that the plaintiff's claim in suit was barred by res judicata as was held by the trial Court.