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 22nd 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 The application under Section 105 was withdrawn.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 8th 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.
4. In deciding the question of non-maintainability of the suit the Courts below proceeded on the authority of the decision of this Court in Gosta Behari Pramanik v. Nawab Bahadur of Murshidabad AIR 1932 Cal 207, in which a suit was instituted before the amendment of Section 109, Ben. Ten. Act, and it was held to be barred under that section; during the pendency of an appeal before the lower appellate Court Section 109 was amended so as to remove the bar. It was held by this Court in second appeal, that the suit was not maintainable. The decision referred to above was commented upon at length by a learned Judge of this Court sitting singly, and was dissented from Debendralal Khan v. Sudharam Roy : AIR1936Cal173 . It was held by the learned Judge that rights of parties with regard to the institution of a suit were determined on the law as it stands at the date of the institution of the suit; that the Legislature by the amendment of the year 1928, expressly created in favour of the intending plaintiff a right which inferentially took away any other right which the defendant may have acquired by reason of the disability which Section 109, Ben. Ten. Act, as it stood before amendment, had placed on the plaintiff. The decision from which we see no reason to differ has been followed by a Division Bench of this Court in Second Appeal No. 1944 of 1934, Administrator-General, Bengal v. Sachindra Kumar Roy Since reported in : AIR1937Cal237 decided on 7th January 1937. It is to be noticed in this connection that in Gosta Behari Pramanik v. Nawab Bahadur of Murshidabad 0065/1931 : AIR1932Cal207 , relied upon by the Courts below, the precise point arising for consideration in this appeal, did not arise, as it did in the unreported case, Administrator-General, Bengal v. Sachindra Kumar Boy : AIR1937Cal237 , referred to above. It is to be noticed also that in the case Suprabhat Chandra v. Bhupati Bhusan Mandal : AIR1936Cal307 in which the amendment of Section 109, Ben. Ten. Act, was discussed, it was observed that the amendment of the year 1928 was made for the purpose of remedying an evil, and it involved no injustice to a party; it was further observed that the proviso to Section 109, Ben. Ten. Act, introduced by the amending Act should be given the widest possible operation. We are in agreement with the opinion thus expressed.
5. In our judgment the intention of the Legislature in introducing a Proviso as was done by the amending Act 4 of 1928, was to allow issues raised in proceedings under Section 105, Ben. Ten. Act, which were not finally adjudicated upon by the revenue authorities, to be subsequently tried by the civil Courts; that intention has been clearly expressed. The bar to the institution of a suit that existed by virtue of a withdrawal of an application under Section 105 was removed. The amendment did not in any way affect the right to have fair rent settled or the right of action in that behalf; it determined the forum in which the right was to be enforced. In the year 1932, the plaintiff in the case before us had the right to bring the suit for assessment of rent in the civil Court, in spite of withdrawal of an application under Section 105 made in the year 1916. This is in consonance with the opinion expressed in the majority of the judgments of this Court, to which reference has been made above and we hold that the suit in which this appeal has arisen was maintainable, regard being had to the provisions of Section 109, Ben. Ten. Act, as they now stand. The decision of the Courts below, on the question of the application of the rule of res judicata to the case before us has received our careful consideration. The Courts below have dealt with this part of the case in detail; and we have considered the effect of the decisions of the Courts in the previous litigation of the year 1917, including the final decision of this Court given on 4th April 1924. In our judgment the Judge in the Court of appeal below is right in holding that the plaintiff's claim in the present suit was not barred by res judicata.
6. In the above view of the case before us, the decisions of the Courts below, and the decrees passed by them, must be set aside, and direction must be given for trial of the suit in which this appeal has arisen on the merits, on the footing that the suit was maintainable in view of 8. 109, Ben. Ten. Act, as it now stands, and that the plaintiff's claim was not barred by the rule of res judicata. The appeal is allowed; the decisions and decrees passed by the Courts, so far as they relate to the dismissal of the plaintiff's suit on preliminary grounds, are set aside; and the case is remanded to the trial Court for decision on the merits of the plaintiff's claim for assessment of fair and equitable rent, regard being had to the issues raised in the suit other than issues 1 to 3 and 7. The costs in the litigation, including the costs in this appeal, will abide the result of the decision after this remand.