M.C. Ghose, J.
1. This is an appeal by the defendants in a suit for enhancement of rent by the landlords under Section 7, Ben. Ten. Act. The facts are that formerly the plaintiffs and the defendants together had a tenure under Bhulua Estate at a rent of Rs. 18-4-0 per annum. The tenure had been created in 1850 and it was held on ticca terms for four years and thereafter it was held at a rate of Rs. 18-4-0. The record of rights of the area was finally published in 1917. The landlords, the Bhulua zamindars made a case under Section 105 asking for enhancement of rent of the tenure. The suit was contested. While the matter was being contested by the defendants the plaintiff's predecessor made a compromise with the landlords and obtained an intermediate tenure at an annual rent of Rs. 36 and thereafter in March 1920 the case under Section 105 was withdrawn by the landlords. The present suit for enhancement was instituted by the plaintiffs in 1932. The trial Court decreed the plaintiffs' suit in part. That decree was affirmed in appeal. The first point taken in appeal is whether the present suit is maintainable in view of the provisions of Section 109, Ben. Ten. Act. In 1920 when the case under Section 105 was disposed of, Section 109 provided that a civil Court shall not entertain any suit concerning any matter which has been the subject of an application made under Sections 105 to 108. That section however was amended in 1928 and the amendment came into force in February 1929. Since February 1929, Section 109 is in these terms:
A civil Court shall not entertain any suit concerning any matter which has been the subject of a suit under Sections 10S to 108 provided that nothing contained in this section shall debar a civil Court from entertaining a suit concerning any matter which was the subject-matter of an application under Section 105 or 'S. 105-A, or of a suit under Section 106 if such application or suit has been dismissed for default or withdrawn or has not been finally adjudicated upon in any such proceeding or suit.
2. The Courts below have held that since the suit was instituted after February 1929, the case is to be decided according to Section 109 as it stands at the date of the suit and not as it stood before February 1929. It is urged by the learned advocate that by the decision of 1920 the defendants got a valuable right, namely, a right to hold the tenure free of any liability of enhancement by suit and that right vested in them in 1920 under Section 109 as it stood at the time and that vested right could not be affected by the amendment of 1929. Many reported cases were cited to illustrate what are considered to be vested rights which are not affected by amendment of a statute. As regards pending actions it has been repeatedly held that the right to an appeal in a pending action is not affected by any alteration in the right of appeal while the action is pending: Colonial Sugar Refining Co. Ltd. v. Irving (1905) A C 369; Keshoram Poddar v. Nundo Lal Mallick AIR 1927 P C 97. This principle would apply under old Section 109 in respect of all actions which were commenced before February 1929. In many cases it was held that suits which were instituted before February 1929 would be governed in all their stages including appeals by Section 109 as it stood before February 1929, that the amended Act could only apply when parties begin to move under it, but if a party moves before the amendment came into force then the law, as it stood before the amendment, would apply.
3. In pending actions, or if a party had taken a step provided by the law to enforce his right, there cannot be any doubt that the amended Act should not apply. In the present case the suit was instituted after the amended Act came into force and the principle is well settled that the parties are to be governed by the law as it stands at the date of the institution of the suit. It is urged however that the vested right having accrued in 1920 could not be affected by the amendment of 1929. That would depend upon the meaning of the amendment. The question in each case is whether the Legislature had sufficiently expressed an intention. We must look to the general scope of purview of the amended Act and at the remedy sought to be applied and consider what was the former state of the law and what it was that the Legislature contemplated. It appears that at one time there was a difference of opinion in this Court as to the provisions of Section 109 in the case where an application under Section 105 had been withdrawn without being adjudicated. The matter came before a Fall Bench in 1925 and it was decided by the Full Bench that Section 109 applied and the suit was barred and it was immaterial whether the application was withdrawn or not. The view of the Full Bench was approved by the Judicial Committee in Reshee Case Law v. Satish Chandra Pal AIR 1929 P C 134. Thereafter in 1928 the amendment was made whereby it was provided that Section 109 would not apply in a case where an application under Sections 105 to 108 was withdrawn or dismissed or otherwise not decided on the merits.
4. As to the invasion of the rights of the defendants by the amendment of 1929 the question is one of the meaning of the amendment. If on a plain meaning of the amendment it appears that the right of defendants is affected, we must give effect to that meaning. The amendments made in 1928 of the Bengal Tenancy Act have most of them reduced or destroyed the rights of one party and created or increased the rights of another party. In many sections the rights of the landlords have been reduced and the rights of the raiyats have been augmented and as between the raiyat and the under-raiyat in Section 48 the right of the raiyat has been augmented at the expense of the under-raiyat. In Section 48(c) the right of the under-raiyat has been augmented at the expense of the raiyat. In Section 179 the right of the landlord has been reduced and the right of the tenant has been augmented. In all these sections it has been held by this Court that the amended section applies to all cases instituted or proceedings taken after the amendment had come into effect. Under Section 48, as it stood before the amendment, a raiyat could not get from the under-raiyat a rent exceeding the rent, which he himself paid by more than 50 per cent., so that, if the raiyat paid a rent of Re. 1 to his landlord he could nod get more than Rs. 1-8-0 from the under-raiyat in spite of any contract to the contrary between him and the under-raiyat. The amended Act took away the previous law, in favour of the under-raiyat, and put the parties entirely to a free contract stating that the under-raiyat was liable to pay such rent as agreed on between himself and the raiyat. This section has been enforced in the case of parties where the under-raiyat had, in the days of the old section, contracted to pay a certain rent to the raiyat, but afterwards when the raiyat sued him took refuge under old Section 48. It has been held in this Court that after the amendment of 1929 the under-raiyat can no longer take refuge under the old Section 48. He is bound now to pay rent according to the contract though made long before 1929.
5. Under old Section 49 a raiyat could eject an under-raiyat after serving a notice upon him to quit at the end of an agricultural year. That right was reduced by amended Section 48(c). It has been held that Section 48(c) will apply to all cases and proceedings instituted after February 1929, but in cases where a suit was instituted or a notice to quit served before February 1929 old section 48 will apply. Under old Section 179 the holder of permanent tenure was bound by any contract he had made with the proprietor of the estate including for instance, payment of interest at 75 per cent, on arrears. Under the amended Act the contract for interest exceeding 12 1/2 per cent, cannot be realized. This section has been held in this Court to mean that though the contract was made long before February 1929 in all suits instituted after February 1929 the landlord would be governed by the amended Section 179. Therefore it is right to interpret new Section 109 as applying to all cases instituted after February 1929. There cannot be any doubt that the Legislature, by express words, created in favour of the intending plaintiff a right which inferentially took away the right which the defendant had acquired by reason of old Section 109. In this view I am supported by the opinion of Mukherjee, J. expressed in 1935 in Debendra Lal Khan v. Sudharam Roy : AIR1936Cal173 . The learned advocate for the defendants quoted an unreported judgment of Nasim Ali and Edgley, JJ. in S.A. Nos. 2054, to 2074, of 1933 Gopal Chandra v. C.K. Nag & Co. Ltd., Since reported in : AIR1936Cal375 , but on perusing the judgment it does not appear that this particular question, whether the amended section will apply to suits instituted after February 1929, was decided by them or brought to their notice. I am clearly of opinion on a plain reading of the amended section that the amended section applies to all cases instituted after February 1929.
6. The next point taken in appeal was as regards limitation. It was urged that the defendants had filed a written statement in the case under Section 105 claiming that the tenure was rent free. This was in 1917. It is urged that declaration of a rent-free tenure would affect the Bhulua zamindars and would therefore affect the plaintiffs who claim under the Bhulua zamindars. If the declaration would affect the Bhulua zamindars, it would certainly affect the plaintiffs also. But the question is whether a mere declaration in the written statement of 1917 would be a right in favour of the defendants. It is to be noted that the matter was not adjudicated in the proceedings under section 105. Those proceedings were dismissed without adjudication and since 1920 the Bhulua zamindars have been getting rent and they have therefore no reason to take action against the defendants. As between the plaintiffs and the defendants it appears that both parties are co-sharer tenants of the Jimbadari tenure though the plaintiffs are the intermediate holders over this tenure. This brings us to the third point that the suit is bad as the plaintiffs as superior holders have sued only the defendants for enhancement of rent though the plaintiffs also hold the inferior tenure together with the defendants. It cannot be said that the form of the suit is bad though the plaintiffs should have been well advised to have first separated the share of the defendants and then sued the defendants for enhancement of rent.
7. The next argument taken is that the Courts below did not consider the plea of the defendants that the tenure was held at a fixed rent of Rs. 18-4-0 per annum and not at a rent which is enhancible. It appears that this point was not taken in the written statement. There the defendants confined themselves to the plea of rent-free tenure. Further it appears that the tenure was created in 1850. Mere uniformity of rent will not therefore lead to a conclusion that the holding is held at a fixed rate. As to the Record of Rights the Munsif has noted that in certain khatians it is stated that the rent is not liable to enhancement but in others it was otherwise. The last argument taken is that the plaintiff a suit as laid should fail because the plaintiffs are hit by Section 90, Trusts Act (Act 2 of 1882). Under that section where a co-owner or mortgagee or other qualifying owner of any property by availing of his position as such gains an advantage in derogation of the rights of other persons interested in the property, he must hold for the benefit of all persons so interested the advantage so gained subject to repayment by such persons of their due expenses properly incurred. It is urged that the plaintiffs and the defendants were co-sharer tenants in possession of the Juribadari tenure under the Bhulua zamindars, that when the Bhulua zamindars made a suit under Section 105 for enhancement of rent and the defendants were resisting that suit the plaintiff's went behind the back of the defendants and obtained an intermediate tenure at Rs. 36 per annum under the Bhulua zamindars, that having done so, under Section 90 the intermediate tenure of Rs. 36 is to be considered a joint tenure of the plaintiffs and the defendants. This argument is plausible but it is not correct, for the rights of the defendants have not been made worse by the intermediate tenure claimed by the plaintiffs. The defendants' position remained just as it was before, only the plaintiffs, their co-sharers, have got an intermediate tenure. In the result this appeal is dismissed with costs. The cross-objection is not pressed and is dismissed without costs. Leave to appeal is refused.