M.N. Mukerji, J.
1. The plaintiffs are the appellants in this appeal. The principal defendants were in occupation of some lands which belonged to the plaintiffs and their co-sharers, the pro forma defendants. These lands were recorded in the record-of-rights as being lands wherein the plaintiffs had a 4-anna share and it was also stated therein that they were assessable to rent. On that the plaintiffs applied under Sub-section 105 and 106, Ben. Ten. Act, for correction of the records alleging that they had a 5-anna share in the lands and not a 4-anna share as stated in the record-of rights. In that application they prayed for a declaration of their title to a 5-anna share and for khas possession in respect of that share and, in the event of such khas possession not being allowed, for settlement of a fair and equitable rent for the lands in respect of that share. The proceedings instituted on the basis of this application were struck off on 7th December 1917 with the following order: 'No action taken: deficit process fee of Rs. 1-12-0, not paid; case struck off.' Thereafter the plaintiffs instituted a suit for declaration of title on the allegation that the entry in the record-of-rights was wrong and they also prayed for khas possession and for other reliefs. This suit was eventually dismissed by the Court, the Court holding that Section 109. Ben. Ten. Act, operated as a bar to the suit. No question in this appeal arises upon the suit aforesaid or upon the result thereof, and so it will not be necessary to refer to it again hereafter. Thereafter the plaintiffs instituted the present suit in which they took their stand upon the entry in the record-of-rights and asked for assessment of rent in respect of their 4-annas share as recorded therein and also for recovery of rent at the assessed rate for certain years previous to the institution of the suit Defendant 1 took several pleas-some in the nature of pleas in bar and others on the merits; but these pleas were all overruled and the Munsif made a decree in the plaintiffs' favour holding that the plaintiffs were entitled to a rent of Rs. 14 for the lands per year in respect of their 4-anna share and allowing the plaintiffs arrears of damages for use and occupation at the said rate for three years immediately preceding the date of the institution of the suit.
2. From this decree the principal defendants preferred an appeal to the District Judge. The learned District Judge held that the present suit was barred by reason of the provisions of Section 109, Ben. Ten. Act. To his reasons on which this conclusion of his is founded, reference will presently be made ; but it may be stated here that except as regards this preliminary point on which he dissented from the view which the Munsif had taken he agreed with the Munsif in other matters, namely in so far as the latter had decided against defendant 1 as regards his other objections. He held that the objection raised by the said defendant on the ground of limitation was entirely without force and that the rate of rent which had been fixed by the learned Munsif was fair and equitable. Being of this view, the learned Judge took as the basis of his decree the rate of Rs. 6 for the sixteen annas share of the lands which defendant 1 had admitted as the rental and on that basis gave the plaintiffs a modified decree. From this decree of the learned District Judge, the present appeal has been taken by the plaintiffs.
3. From what has been stated above, it would appear that the substantial question which arises for determination in this appeal is the question whether by reason of the application which the plaintiffs had made under Sub-section 105 and 106, Ben. Ten. Act, the present suit is barred in consequence of the provisions of Section 109 of that Act. It has to be stated here that before the suit was instituted the said Section 109, Ben. Ten. Act, was amended by the introduction into it of the proviso that is to be found now under the said section. The reason upon which the learned Judge proceeded in arriving at his conclusion as regards the bar afforded by Section 109, Ben. Ten. Act, may be summarized in the following words: He refers to Section 2, Clause (3), Ben. Ten. Act, in the first instance and then he observes:
Under the old Section 109 the defendant had acquired a right not to have his jote assessed to rent as that was a matter in the Section 106 case.
4. And in respect of this conclusion of his he has observed thus:
The amendment to Section 109 amounts to a repeal of the old Section 109 and the enactment of the new section, and it could not affect a right of the defendant acquired before the amendment. The respondent urges that the old section was a mere bar, and that the bar has been removed. But the correct view is that the old bar supported an erection under which the appellant was entitled to shelter. The amendment has not removed the bar and brought the edifice toppling down on the appellant and the hundreds dwelling in peace under similar erections similarly supported; it has merely said that in future the law will not provide such bars to support such erections to shelter people, which is quite a different thing. The point cannot be disposed of by talking loosely about bars.
5. The learned Judge apparently thought that the proviso which had been introduced into Section 109, Ben. Ten. Act, amounted merely to the repeal of a certain provision which was to be found in the Act as it stood before the amendment. That however is not the position. It is a substantive provision enacted in order to be operative from the point of time at which the enactment was intended to come into force. It is expressed in very clear words, from which no intention to delay its effect for any length of time can possibly be inferred. It seems to me that for two reasons, if not more, the view that the learned Judge has taken of this matter is not correct. In the first place, the question is whether the first part of the section apart from the proviso is applicable to the present case. In answering that question I ask myself, what was the subject matter of the application under Sub-section 105 and 106, Ben. Ten. Act? And reading that application it seems to me perfectly plain that the subject matter of that application was a claim to a one-third share in the lands, a claim which had been negatived in the record-of-rights, and the claim with respect to that one-third share consisted of two alternative reliefs, namely, (1) for khas possession and (2) for assessment of rent. It is quite true that the one-fourth share on which the plaintiffs now take their stand is less than the one-third share which they had claimed in the said application; but even then upon a proper consideration of the matter, it seems to me inconceivable that it can be said that the present claim for assessment of rent in respect of a one-fourth share can, in any way, be treated as a subject matter of the application under Sub-section 105 and 106, Ben. Ten. Act. It is quite true that it was open to the plaintiffs in that application to have included a claim for assessment of rent in respect of a one-fourth share on the basis of the entry in the record-of-rights; but such a claim was not included and I find it very difficult to hold that the present suit in so far as it was a suit for assessment of rent in respect of a one-fourth share on the footing of the record-of-rights was a matter which was the subject matter of the application under Sub-section 105 and 106, Ben. Ten. Act. I am of opinion therefore that the present case does not in fact attract the operation of Section 109, Ben. Ten. Act at all.
6. Even if this view be regarded as incorrect, I am of opinion that it cannot be disputed that the plaintiffs are saved by the proviso to the section. The learned Judge has observed that the proper view to take of the proviso is that it merely removes a bar and that it cannot affect any right already accrued to the party in whose favour the section itself operated before the proviso was introduced. This view, has been sought to be supported to a certain extent by certain observations which are to be found in a decision of this Court to which my attention has been drawn: the case in Gosta Behari Pramanik v. Nawab Bahadur of Murshidabad 1932 Cal 207. That was a case where the suit to which Section 109, Ben. Ten. Act as amended by the Bengal Act 4 of 1928 was sought to be applied had been instituted prior to the introduction of the proviso and it was held that the amendment had no retrospective operation so as to affect proceedings pending at the date of the amendment and that such Section 109 as it stood before the amendment would apply. The decision therefore was a decision in respect of a case which was very different on facts from the present case. But the observations which at first sight seem to be in support of the learned Judge's view run in these words:
There seems hardly room for doubt that Section 109 did not merely lay down the procedure but by taking away the ordinary right of suit of the plaintiff, conferred a very valuable right on the defendant in some cases. The immunity from a civil suit thus gained by the defendant is a substantive right inasmuch as it enabled him to hold the property in the right mentioned in the record-of-rights without further litigation. In essence it is difficult to distinguish such a right from a right of appeal. If no right of appeal is given by statute at the date of the suit, the successful party acquires a certain right under the decision of the suit which is not open to challenge in appeal. In a case under Section 109 (old Act) where an application is made and withdrawn, the defendant obtains the rights to hold the property as recorded in the record-of-rights without further risk of litigation. I accordingly hold that the right which the defendant in this case obtained under Section 109 (old Act) is a substantive right which cannot be affected, except by express words, by subsequent alteration of the law.
7. There is no question, under the terms of the section as it stood before the amendment, of anybody acquiring any right: the section imposed a disability on intending suitors of which their opponents could undoubtedly take advantage. Such disability lasted only so long as the section itself lasted in its old state. The proviso enacted an express provision removing the disability in certain circumstances. And if it be held, as it must be held in the absence of anything in the Act to the contrary, that the proviso came into operation at the same time as all the other amendments did, there cannot be the slightest doubt that the legislature by express words created in favour of an intending plaintiff a right which inferentially took away any other right which the defendant may have acquired by reason of the disability which the section, as it stood before its amendment, had placed on the plaintiff. To adopt the respondents' contention or the view of the learned District Judge would necessitate our holding that the amended Section would come into play only in respect of proceedings under Sub-section 105 to 108 instituted after the amended Act came into force. Such a position is untenable. I am clearly of opinion that the view which the learned Judge has taken of this matter cannot be supported and that the suit, having been instituted at a time when the proviso had already come into operation, was to be governed by the section as it stands now together with the proviso contained in it; the ordinary law being that the rights of the parties with regard to a suit should be determined upon the law as it stands at the date of the institution of the suit.
8. For these reasons, the view which the learned Judge has taken cannot, in my opinion, be supported. In view of the fact that the learned Judge has upheld the learned Munsiff's decisions with regard to the other matters that have arisen in the case, it follows that the appellants are entitled to a decree from this Court setting aside the decree of the learned District Judge and restoring that of the learned Munsiff. The result is that the appeal should be allowed, and the decision of the learned District Judge being set aside, that of the learned Munsiff should be restored with costs in this Court and in the Court of appeal below. Leave to prefer an appeal under the Letters Patent asked for by the respondents is refused.