R.C. Mitter, J.
1. The defendant is an occupancy raiyat. His tenancy has been in existence from certainly before 1928 and consists of thirteen complete parcels of land and undivided shares in three other parcels. It is held at an annual rental of Rs. 21-3-8. The plaintiffs sued him for recovery of the balance of the rent and cesses due for the year 1337 and claimed damages at 25 per cent. On this part of the claim the only controversy between the parties was in respect of the claim for damages. The first Court allowed damages at the rate of 6-1/4 per cent and there is no further question relating thereto.
2. The plaintiffs however claimed enhancement of rent on the grounds mentioned in Section 30 (b), Ben. Ten. Act. They filed the suit on 18th June 1931, that is after the Bengal Tenancy Amendments Act (Act 4 of 1928 B. C), had come into force. This claim of the plaintiffs was resisted by the defendant in the lower Courts and is resisted before me. The learned Munsiff held that the plaintiffs were entitled to enhancement of rent on the grounds mentioned in that section and enhanced the rent by one and half anna per rupee. The learned Subordinate Judge however on appeal has negatived the plaintiffs' claim. The plaintiffs accordingly have filed this appeal, and ask for the restoration of the decree of the learned Munsiff. The question raised in this appeal, as far as I am aware, is of first impression. The case of 33 Bir Bikram Kishore v. Rajjab Ali 1930 Cal 238 approaches the case I have to decide very nearly, but is not exactly the same.
3. There cannot be any doubt that if the suit had been instituted and decided before the amendment of the definition of 'holding' by Act 4 of 1928, the plaintiffs' claim for enhancement on the grounds mentioned in Section 30 would have failed, on the ground that the defendant's tenancy is not a holding as defined in the Bengal Tenancy Act before the amendment of the year 1928. The decisions of this Court on this point are uniform since 1898, when the case in Haribole Brahmo v. Tasimuddin Mondal (1898) 2 C W N 680 was decided: Parbati Debi v. Mathura Nath (1913) 40 Cal 29; Binayak Das Achari v. Samiruddin 1920 Cal 701. The cases of Binayak Das Achari v. Samiruddin 1920 Cal 701, Uma Charan v. Moniram (1904) 8 C W N 192 and Baidyanath Mondal v. Sudharam Misri (1904) 8 C W N 751 cited by the learned Advocate for the appellant, have no bearing upon the point, and I may parenthetically observe that I do not see how in any event 25 Cal 917n Binayak Das Achari v. Samiruddin 1920 Cal 701 supports him. In that case on a difference between Petheram, C. J., and Rampini, J., the matter was referred to banerjee J., who in agreement with Rampini J., held that a ryoti tenancy which comprised undivided shares in parcels of land was not a holding as defined in the Bengal Tenancy Act then in force and that rent would not be a first charge on such a ryoti tenancy as Section 65, Ben. Ten. Act, made rent a first charge on 'a holding.' The case of Baidyanath Mondal v. Sudharam Misri (1904) 8 C W N 751 is a case of a different type altogether. There the ryoti tenancy which comprised undivided shares in parcels of land had been created before the Bengal Tenancy Act was passed and when Act 8 of 1869 (B. C.) was in force. The said Act did not define 'holding' in terms of the Bengal Tenancy Act. The tenant had acquired occupancy rights under Act 8 of 1869. The right so acquired could not be taken away by the Bengal Tenancy Act. The estate or zamindary under which the said tenancy was held was purchased by the plaintiff at a revenue sale, and he brought the suit to get Khan possession of the lands of the said tenancy. The defendant who owned the tenancy set up that his interest was protected by Section 37, Revenue Sales Act 9 of 1859, as he had occupancy right. It was held that he had occupancy right and was so protected from eviction. Even if such a tenancy had been created after the Bengal Tenancy Act came into force (but before Act 4 of 1928 B. C.) there would not have been any difference. A tenant who has been granted lease of land for the purpose of cultivation, would be a ryot even if the demised premises be undivided shares in parcels of land.
4. In Section 5, Ben. Ten. Act, which defines a ryot the condition is that he must hold land' and not a 'parcel' or parcels' of land for the purposes of cultivation. In Section 105, Ben. Ten. Act, the Settlement Officer is entitled to settle fair and equitable rent 'in respect of the land' held by the tenant. It has been held that a Settlement Officer can settle fair and equitable rent which may be and in most cases is above the existing rent, even where the ,claim on the part of the landlord to get more rent is put forward on the ground of rise of the price of staple food crops or other grounds mentioned in Section 30, and the ryoti tenancy consists of undivided shares in parcels of land. In those cases the cases, where the enhancement of rent bad been claimed by suit under the provisions of Section 30 but refused on the ground that the tenancy comprised undivided shares in parcels of land, were distinguished on the ground that whereas Section 30 contemplates the case of enhancement of rent of 'holdings,' S.105 contemplates the case of settlement of fair and equitable rent in respect of 'land,' the word 'land' including 'an undivided share in a parcel of land:' Safaruddi v. A.K. Fazal Huq 1915 Cal 644; Surendra Chandra v. Kedareswar 1929 Cal 156. Adopting the well-established canon of construction that the same word used in different parts of the same statute must have the same meaning, unless something to the contrary appears from the context, it would not be unreasonable to hold that under the Bengal Tenancy Act, even before the amendment of 1928, a tenant holding undivided shares in parcels of land would be a ryot, and could be a settled ryot of a village by reason of occupation of such lands for a period of 12 years, for Section 20 of the Act requires that the tenant should be a ryot and must hold the 'land' as such continuously for: 12 years. The case of Uma Charan v. Moniram (1904) 8 C W N 192 is of the same type as Baidyanath Mondal v. Sudharam Misri (1904) 8 C W N 751. There also the suit was by a purchaser at a revenue sale to recover Khan possession and the defendant put forward a claim for protection on the ground that he was an occupancy ryot. The two cases decide that occupancy rights can be acquired by a cultivator whose tenancy comprises undivided shares in parcels of land. The cases cited by the learned Advocate for the appellant have accordingly no bearing on the point, and do not certainly support his contention that a suit for enhancement of rent under Section 30, Ben. Ten. Act, before the amendment of 1928 would have been maintainable when the tenancy consists entirely of undivided shares in parcels of lands or partly of entire parcels of land and partly of undivided shares in parcels of land. The current of authority of this Court, so far as I am aware, is uniform. The tenant in the position of the defendant in this case therefore enjoyed immunity from action for enhancement of rent on the grounds mentioned in Section 30. That immunity has been taken away by reason of the amendment of the definition of holding by Act 4 of 1928 Holding, as now defined, may include shares in parcels of land. The question therefore reduces itself to the simple pro-position as to whether Section 30, Ben. Ten Act can be combined with the definition of holding, as now amended, so as to give the landlord the right to sue for enhance ment of rent in respect of a tenancy created before Act 4 of 1928 came into force. In my judgment the answer must be in the negative. The effect of the said amendment, is to take away the immunity from an action for enhancement enjoyed by such a tenant upto February 1929 when Act 4 of 1928 came into force, which should not for that reason be given retrospective operation. The following observations of Sir George Jessel in In Re: Joseph Suche & Co., Ltd. (1876) 1 Ch D 48 at p. 50, are relevant:
I so decide because it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms, they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested that the alteration made by this section is within that exception.
5. A statute which takes away a right of action really takes away a right: ubi jus ibi remedium, and if the remedy is taken away what remains of the right! Where a statute confers a right of action which was non-existent before, it generally creates a right with a corresponding obligation. It is on this principle that Suhrawardy, J. when dealing with the effect of the amendment of Section 109, Ben. Ten. Act by Act 4 of 1928 on a pending action held that immunity from a civil suit is a substantive right and a statute which takes away such immunity cannot have any retrospective effect or govern proceedings pending at the time. In Bir Bikram Kishore v. Rajjab Ali 1930 Cal 238, a suit for enhancement on grounds mentioned in Section 30, Ben. Ten. Act had been instituted by the Maharaja in or before the year 1926. The tenancy of the ryot defendant comprised undivided shares of parcels of land. The suit was decided by the First Court on 7th December 1926 and the judgment of the appellate Court was pronounced on 30th June 1927. Both the lower Courts had dismissed the plaintiff's claim for enhancement. While the appeal was pending in this Court, Act 4 of 1928 (B. C.) came into force. The plaintiff contended that as the definition of holding, as amended by the said Act, would cover a case where undivided shares in parcels of land are held by a ryot, he was entitled to succeed on his claim for enhancement. Sir George Rankin held that this Court could not disturb a decision correctly arrived at according to law on the data of the decision, but in the course of his judgment he observed thus:
In my opinion there are no words in the amending Act which show or even tend to show that the amendment of the definition is to be applied with retrospective effect.
6. These observations were no doubt made in relation to the particular facts of the case and for the purpose of meeting the argument of the Advocate of the Maharajah that effect should be given to the amendment, as the suit, though instituted before the date of amendment, had not been finally disposed of at the date when it came into operation but they definitely point to the view of the learned Chief Justice that that amendment would not govern a pending action, which it would have done, if it was merely procedural and had not affected vested rights. I accordingly hold that as the tenancy had been created before Act 4 of 1928 (B. C.) came into force, the plaintiff's claim for enhancement of rent under Section 30 (b), Ben. Ten. Act has been rightly dismissed. The appeal is accordingly dismissed with costs. Leave to appeal under the Letters Patent asked for is granted.