M.C. Ghose, J.
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. 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. Nunnee Khanum (1873) 19 WR 322, Gopika Raman Roy v. Atal Singh AIR 1929 P C 99 and Kandan Majhi v. 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. Sudharam Ray : AIR1936Cal173 . 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. 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.
4. I agree with my learned brother in the order that has been passed. The plaintiff commenced the suit for recovery of additional rent for additional area. It is incumbent upon him to establish the original area for which rent was being paid by the tenant. To prove that, the plaintiff relied upon Ex. 5 which purports to be a kabuliat of the year 1806. The trial Court held it to be a genuine document and relying upon it gave the plaintiff a decree. The lower appellate Court has reversed the decision and has held inter alia that no reliance can be placed upon this document even if it is assumed to be genuine and the specification of area contained in the same must be an apparent mistake. The appellate Court has held further that the rent being fixed in perpetuity no case of enhancement can be made under the provisions of Sections 6 and 7, Bengal Tenancy Act. Against this decision a second appeal has been taken to this Court and Mr. Shastri, who has appeared for the appellant, has assailed the reasoning of the lower appellate Court, first of all on the ground that the question of the genuineness of the kabuliat was a matter upon which a previous judgment between the same parties passed in a suit of 1909 was conclusive. We think, however, that the question of the genuineness of the document which was one of the items of evidence produced in that case could not be said to be put in issue in that case at all which would make the finding conclusive for all time to come between the parties to the suit. We may quote the well known observation made in Gopika Raman Roy v. Atal Singh AIR 1929 P C 99 where it was said that as it would be as much improper to put in issue the document which the parties filed as it would be to put in issue the veracity of witnesses who deposed to the allegations. This view was approved of by this Court in Narendranath Samaddar v. Ananda Chandra Saha : AIR1934Cal60 and we are unable to agree with Mr. Shastri that the finding regarding the genuineness of the kabuliat operated as res judicata in the present proceeding. But even if it was not res judicata, the learned Judge has not adduced any reason as to why it should not be held to be genuine and an operative document; rather for purposes of deciding point 1 formulated by him he has assumed the document to be a good and genuine document. I think, however, as pointed out by my learned brother, that the learned Judge misdirected himself both on facts and law regarding the decision on this issue. The kabuliat may not have been a lease in the completest sense of the word but nevertheless it must be taken to be an admission by the tenant as regards the area which was leased out as well as the instalments of rents payable by him. The learned Judge was in error in thinking that it could not have been a kabuliat at all and no weight ought to be attached to it and he had no justification for indulging in a fruitless speculation as to whether the figures shown in the document was a clerical mistake or not. The learned Judge has not considered the explanation given and which was accepted by the trial Court as to how the original area of 67 bighas odd could come up to 1,800 Bighas in course of time and in deciding this question he was labouring upon an apparent misconception in taking it to be a suit for enhancement of rent of a tenure under the provisions of Section 7, Ben. Ten. Act. It is difficult to find any relevancy in the discussion of the learned Sub-Judge on the question as to whether the rent was fixed in perpetuity or whether or not the tenure was one which was in existence from the time of the permanent settlement. We are of opinion that the appellate Court has approached the case from a wrong standpoint altogether and laboured under a fundamental misconception of facts and law.
5. As regards the point which was taken by Mr. Gupta in support of the decision of the appellate Court, namely as to whether Section 109, Ben. Ten. Act, would operate as a bar to the present suit, I agree with my learned brother in answering the question in the negative. Here, the suit was admittedly instituted after the proviso was introduced by the amending Act and the question arises as to whether the litigant can avail himself of the proviso when he institutes the suit after the section is amended although the withdrawal itself was effected before 1929. The decisions in Gosta Behari Pramanik v. Nawab Bahadur of Murshidabad 0065/1931 : AIR1932Cal207 , Jnanendranarayan Bagchi v. Saradasundari Dasi : AIR1931Cal25 and Kandan Majhi v. Kulada Prosad Roy (1935) 163 I C 631 are not to the point inasmuch as in all these cases the suit was instituted prior to the amendment. In Debendra Lal Khan v. Sudharam Ray : AIR1936Cal173 , the facts were identical with those of the present case and M.N. Mukerji, J. was of opinion that the proviso would save the suit and the civil Court had jurisdiction to entertain it even though the order of withdrawal was passed prior to amendment. I am in entire agreement with the view expressed by the learned Judge and I accordingly hold that Section 109 is no bar to the institution of the present suit. In Suprabhat Chandra v. Bhupati Bhusan Mandal AIR 1986 Cal 307, the facts were a bit different and although the learned Judges held in that case that when both the orders of withdrawal and the institution of the suit were effected after the amendment it would come within the benefit of the proviso, the learned Judges did not express any opinion as to whether the suit would be a bad suit if the suit was commenced after the amendment although the proceeding in Section 105 was withdrawn prior to the amendment. The decision does not directly stand in the way of the view which I take and agreeing with the view taken by M.N. Mukerji, J. in Debendra Lal Khan v. Sudharam Ray : AIR1936Cal173 , I agree in overruling the contention of Mr. Gupta. The appeal succeeds and the case is sent back to the lower appellate Court for fresh hearing in the light of the observations made above. Costs will abide the result; hearing fee two gold mohurs.