1. These five appeals arise out of as many suits that were instituted by the appellant for enhancement of rent under Section 30, Ben. Ten. Act. The Courts below have dismissed the suits on the ground that they were not maintainable in view of Section 109 of that Act.
2. The plaintiff had previously filed applications under Section 105 of the Act. She was then a cosharer landord, her share amounting to 14 annas. She made her cosharers pro forma opposite parties to her applications but prayed for enhancement of the rent due to her share. The defendants, who were the principal opposite parties in the proceedings, contested the maintainability of the application, and the trial Court, as well as the Court of first appeal, upheld the objection and ruled that the applications did not lie. She then preferred second appeals to this Court, which held that under certain conditions and circumstances the applications might lie - notably, if there were separate contracts between the parties. As the facts had not been investigated, the cases were remanded for further investigation. The defendants persisted in their opposition, and on that the plaintiff withdrew the applications, alleging that there were defects therein which were irremediable. Thereafter, on a partition with her cosharers, the holdings were exclusively allotted to her share and she came to be the 16 annas landlord in respect thereof. She then instituted the present suits.
3. We are of opinion that, in the circum stances narrated above, the suits were not barred under the provisions of Section 109 of the Act. There are at least two reasons which induce us to take this view. Full Bench decision of this Court in the case of Puma Chandra v. Narendra Nath : AIR1925Cal845 , has laid down that if an application is made under Section 105, Ben. Ten, Act, and subsequently withdrawn, whether with or without the permission of the Court, a suit on the same subject matter is barred by the provisions of Section 109 of the Act. The question, therefore, is whether the subject-matter in the present cases was the same. The holdings with which the application under Section 105 were concerned consisted of the 14 annas undivided shares of the lands, while the holdings with which the present suits are concerned are the entire lands. The subject matter, therefore, in our opinion was not the same.
4. Moreover, the effect of the previous litigation may not inaptly be put in this way : That the defendant's objection was given effect to by the two Courts below, and the High Court having held that unless the plaintiff was able to prove certain facts the applications would not be maintainable, the plaintiff withdrew the applications because she would not be able to prove those facts. It is hardly consonant with justice that the defendants, who took up in the proceedings under Section 105 the position that the applications did not lie, should be allowed to turn round and say that the said applications were entertainable in law, and as such operate as a bar to the suits. The present suits may rightly be said to have arisen out of the result of those applications. It is well settled that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit other than the one in which the position was taken up, provided the second suit grows out of the judgment in the first Diwijendra Narain v. Joges Chandra De : AIR1924Cal600 . It is true that the applications were withdrawn but that withdrawal was after the defendant's objection had prevailed in the two Courts below and would have prevailed for ever unless the plaintiff was in a position to get over it by establishing certain facts.
5. We are, accordingly, of opinion that the view taken by the Courts below was erroneous. The appeal must succeed. The decisions of the Courts below being set aside, the suits are sent back to the trial Court to be dealt with on their merits. Costs of this Court as also of the Courts below will be costs in the cause.