1. This appeal arises out of a suit for rent for the years 1341 to 1344 B.S. The only question is as to the rate at which the plaintiff is entitled to recover. The learned Munsif gave a decree at the rate of Rs. 7-4-0 per year as claimed by the plaintiff. On appeal the learned Subordinate Judge varied the rate and fixed it at Rs. 8-10-0 per year, being the rate admitted by the defendant.
2. The plaintiff and the defendant along with o others were co-sharer landlords. In the year 1904 the defendant purchased the disputed Iands, which constituted an occupancy holding under them at a rent sale in execution of a decree for his share of the rent. There, after he continued to hold the land at the same rate as the original tenant. In or about the year 1928 the estate in which this holding was comprised came under partition under the Estates Partition Act, 1897, (Bengal Act 5 of 1897), and the holding fell within the share allotted to the plaintiff, who thus came to be the sole landlord of the holding. It appears that in the butwara proceedings the Partition Deputy Collector recorded a sum of Rs. 7-4-0 as assets in respect of the land in dispute, that being the amount which the defendant had been realising after his purchase from the cultivating raiyats on the land. Presumably the plaintiff and other co-sharers were each given equivalent assets in the partition. It is on the basis of the assets so settled that the plaintiff has claimed rent at the rate of Rs. 7-4-0 per year. A preliminary objection is taken that the appeal is hit by Section 102, Civil P.C. It is said that the amount claimed is not rent, but compensation for use and occupation, under Section 22(2), Bengal Tenancy Act. This is the view which appears to have found favour with both the Courts below. If this is correct, there can be no doubt that the suit does not e fall within any of the categories specified in Schedule 2, Provincial Small Cause Courts Act, as suits excepted from the cognizance of a Court of Small Causes, and the preliminary objection should prevail.
3. In answer, Mr. Maitra, on behalf of the appellant, however, points out that the matter should be governed not by the terms of Section 22(2), Bengal Tenancy Act, as it now stands, but by the terms of the section as it stood in the year 1904. There were cases in this Court on the old Section 22 itself in which it was held that upon purchase of an occupancy holding by a co-sharer landlord, the I holding itself was merged in the interest of the purchasing co-sharer, but that view was negatived by the Full Bench in Ram Mohan Pal v. Sheikh Kachu ('05) 32 Cal. 386. According to this view, therefore, the defendant after his purchase became liable to pay rent as a tenant to the whole body of landlords including himself. Section 22 was afterwards amended in 1908 and has been since further amended in 1928. It has been held, however, in Abhoy Charan v. Ram Sundar : AIR1930Cal109 , that such amendment is not retrospective in operation. It must consequently follow that the defendant's liability in the present case under his purchase which took place before the amendment of 1908 was for rent, and not for use and occupation. The preliminary objection must, therefore, be overruled.
4. As regards the merits of the case, however, I think the appeal must fail. If the defendant's status continued to be that of a tenant, it is difficult to see how it could be altered in any way by the proceedings under the Estates Partition Act. The effect of those proceedings was simply to substitute one landlord in the place of several vis-a-vis the defendant. In other words, after the butwara the defendant became liable to pay to the plaintiff alone what he had so far been paying to the whole body of co-sharer landlords including himself. There could be no alteration in the rate of rent.
5. Mr. Maitra's contention is that as the Partition Deputy Collector has fixed the assets of this holding at Rs. 7-4-0 per year and given equivalent assets to the defendant and other cosharers, the plaintiff was entitled to recover at this rate. This contention would have held good only if it could be shown that the defendant was not a tenant, but merely a person in occupation of the land who was liable to pay a fair and equitable sum for the same. That however is not the position. At the time of the butwara the land was held by a tenant, and it was not accordingly open to the Partition Deputy Collector to settle any assets irrespective of the rent, and fasten on the defendant a liability for rent at a new rate. As I have said, the only effect of the butwara was to transfer the defendant's tenancy to the plaintiff as sole landlord. The result is that, in my opinion, the view taken by the learned Subordinate Judge was correct. The appeal, accordingly, fails and is dismissed with costs. The application in the alternative under Section 115, Civil P.C., filed on 8lst August 1939 is rejected.