1. This appeal arises out of a suit which was instituted by the plaintiff for recovery of re it from the defendants, representing the difference between the rents as they stood before enhancement and the amounts at which they stood after enhancement.
2. After the final publication of the Record-of-Rights the plaintiff instituted proceedings under Section 105, Ben. Ten. Act for assessment of fair rents. The Settlement Officer enhanced the rents to the amounts stated in the present suit, but on appeal by the defendants the Special Judge reversed that decision. The plaintiff preferred a second appeal and the case was as a result thereof remanded for a fresh decision. While -this litigation was pending and after the decision of the Special Judge dismissing the plaintiff's claim for enhancement, the plaintiff instituted a suit for rent at the old rate, for the years 1326 to 1329 B.S. and obtained a decree. The proceedings under Section 105, Ben. Ten. Act eventually ended in a decision in plaintiff's favour, enhancement being allowed at the amounts stated in plaint and the said enhancement was to operate from 1923 B.S. The plaintiff thereafter instituted the present suit for the difference, for the said period, namely 1326 to 1329 B.S. The trial Court dismissed the suit, but the lower appellate Court on plaintiff's appeal has decreed the same. The defendants have then preferred the present appeal.
3. The contention that hag been urged on behalf of the appellants is that Order 2, Rule 2, Civil P.C., operates as a bar to the plaintiff's claim. In my opinion this contention cannot succeed and for two reasons:
The argument is that the claim for rent at the enhanced rate should have been included in the former suit in which only rent at the old rate was asked for. To include that claim in the former suit it would have been necessary for the plaintiff to ask in the first place for enhancement of rent and then for a decree for the amount to which it may be enhanced, and in the alternative for rent at the old rate. Where a plaintiff has not framed his suit as one for enhancement of rent, but merely as a suit claiming arrears of rent at an enhanced rate, he is not entitled to a decree, as it is well settled that, though he can claim back rent for additional area, he cannot, claim back rent at enhanced rate until the rent has been enhanced in a suit appropriately framed for the purpose : Ejel Mullich v. Felai Mullick (1915) 21 C.L.J. 309. In view of the facts as they stood at the date of the plaintiff's former suit, this claim would have involved a matter which was and had already been the subject of proceedings under Section 105, Ben. Ten. Act. Section 109 of that Act would have operated as a bar to the entertainment of a suit involving; the said claim. In these circumstances; it can hardly be said that the plaintiff' was 'entitled to make' the claim or that he had 'intentionally relinquished' it I within the meaning of Order 2, Rule 2, Civil P.C.
4. Then again the relation of the two claims, namely, one for enhancement of rent and the other for recovery of arrears at the old rate, was considered by the Privy Council in the case of Soora Sundary Devi v. Golam Ally 15 B.L.R. 125 (note), and in the Full Bench decision of this Court in the case of Sudduruddin Ahmed v. Beni Madhab Rai (1888) 15 Cal. 145 (F.B.) it was pointed out that the causes of action of the two claims are different. Those cases, no doubt, in one sense, may be regarded as converse to the present one, because in. those cases the first suit was one for rent at an enhanced rate and the second one for rent at the old rate and the questions arose under Section 43, Civil. P.C. 1882. The principle enunciated in those cases, however, is quite clear and applies fully to the present case. The two causes of action may no doubt be joined in one suit, but still they are separate Gudar Tewari v. Brijanandan Pershad (1901) 5 C.W.N. 88. Order 2, Rule 2, Civil P.C., therefore, cannot be a bar.
5. The case of Manmatha Nath Pal v. Surendra Nath : AIR1925Cal463 , upon which reliance has been placed on behalf of the appellant is wholly distinguishable, there having been in that case no proceedings under Section 105, Ben. Ten. Act, and the claim for enhancement incorporated in the first suit having already been decided in the plaintiff's favour at the data of the second suit.
6. For the above reasons the appellants' contention must be overruled. The appeal accordingly should be dismissed with costs.
7. I agree.