Macpherson and Banerjee, JJ.
1. The only question raised in this case is whether Section 111 of the Bengal Tenancy Act is a bar to the suit.
2. It appears that in October 1890 the Government made an order, under Chapter X of the Bengal Tenancy Act, for a record of rights and settlement of rents in the part of the country in which this land lies. The present suit was brought in April 1891 to recover rent due for the Maji years 1249, 1250, and 1251, corresponding with the years 1887 to 1889 A.D. The plaintiff claims under the terms of a kabuliat which provides that if it is found that the defendant holds land in excess of the area specified in the kabuliat, he shall pay excess rent at a stipulated rate. It is urged in the present case that a measurement was made previous to the time for which rent is claimed, that excess land was found, and that the defendant is liable to pay the additional rent claimed.
3. The Lower Appellate Court has held that the suit cannot be maintained without a violation of the provisions of Section 111 of the Bengal Tenancy Act, the suit being in effect one for the alteration of the rent.
4. We think that this suit must be regarded as, and is in fact one, for arrears of rent, and not a suit for alteration of the rent within the meaning of Clause (a), Section 111 of the Bengal Tenancy Act. The alteration there referred to is an alteration of the rent as it is at the time when the order under Section 104 was made; an alteration which would have a prospective and not a retrospective effect, and the suit for the alteration of rent which is prohibited by that section points, in our opinion, to a suit in which the alteration would be of the same description as that which the Revenue officer is empowered to make under Chapter X. What has to be determined in this suit is not the rent which the defendant would be liable to pay for future years. The question here is, what is the amount of rent now due under the terms of his contract for the years which preceded the year in which the order under Chapter X was made, and it seems to us to make no difference that the decision of that question might involve as regards those years some alteration of the rent which had been previously paid. The object of Section 111 clearly is that two proceedings shall not go on simultaneously for the determination of the same matter, such as a suit for the alteration of the rent, putting upon these words the meaning which we have done. If that meaning is the right one, it is clear that this suit would not clash with any proceeding held by the Settlement Officer for the determination of the rent which the defendant henceforward would have to pay. On the other hand, if we adopt the construction which the Subordinate Judge has done, the effect would be to deprive the plaintiff of the rent to which, under the contract of the defendant, he might be justly entitled for the years in question. Although the Settlement Officer has the power prospectively to determine the rent, he has no authority to do so retrospectively, nor has he any authority to award to the plaintiff any rent which has become due for previous years. We think, therefore, that this suit is maintainable, and that the judgment of the Lower Appellate Court is wrong. The result is that the decree of the Lower Appellate Court must be set aside, and the case remanded in order that the other matters raised in the appeal before the Subordinate Judge may be disposed of.
5. The appellant will get his costs in this Court from the respondent.