1. The two main questions which have been argued in this appeal are first, as to the applicability of Section 44(c) of the Bengal Tenancy Act to the facts of the present case, and secondly, as to the applicability of Section 45 of that Act, which was in force at the time when the suit was brought but was repealed by the Bengal Council Act I of 1909.
2. If Section 44(c) does not apply, that is, if it be a fact, as the lower Appellate Court has found, that the defendants were not admitted to occupation by the plaintiffs under the kabuliat of the 19th January 1901, then the suit fails on that ground. This finding of fact of the Subordinate Judge has been impugned, and it has been contended that the finding is not one of pure fact but of mixed fact and law, and, as such, erroneous. It is not, however, necessary further to inquire into this part of the case for, assuming for the sake of argument, but without deciding in favour of the plaintiffs, that Section 44(c) of the Bengal Tenancy Act does apply, then the learned Subordinate Judge has found, and I think rightly found, that Section 45 applies, and, as no notice was served the suit should be dismissed. It is to be observed that the suit was instituted on the 20th November 1905; and the Act which repealed Section 45 was not passed until 1907. But it has been contended that the suit should be governed by the Bengal Tenancy Act, as modified by the Act passed some two years subsequently to its institution. Reliance has been placed on two chief grounds. In the first place, it is said that Section 196 warrants this contention. In my opinion, however, that is not so. That section applies only where both Acts govern the proceedings, as in the case of a suit instituted after 1907, in which case the law to be administered would be the Bengal Tenancy Act, as modified by the Act of 1907. But that is not the case here, as the suit was instituted in 1905.
3. Then it is said that the General Clauses Act, Section 8(c), helps the appellants. In my opinion this is clearly not the case. That section does not affect the matter before us. The question here is not one affecting any right within the meaning of that section. The question is whether the plaintiffs, who at the date of their suit had a right limited by law, in a particular way, have the right to take advantage of subsequent Legislation, modifying or removing that limitation. I am clearly of opinion that this is not so and that the right of the plaintiffs must be determined by the law as it stood at the date when the suit was instituted; and on that date Section 45 was in force and notice was required. Admittedly, no notice was given; and, therefore, the suit was on that ground rightly dismissed.
4. The appeal, therefore, fails and must be dismissed with costs.
5. I am clearly of opinion that an enactment like Section 45 of the Bengal Tenancy Act, 1885, which made the giving of notice a condition precedent to the institution of a suit for the ejectment of a non-occupancy ryot and so protected such a ryot from being sued in ejectment without notice, is more than a provision, relating to mere procedure. Such an enactment, therefore, is covered by the rule against the retrospective operation of a repeal, which is to be found in Section 8 of the Bengal General Clauses Act, 1909, (Bengal Act I of 1909). That being so, the suit before us was bound to fail.