1. This application arises out of an application for revision by the defendant in a rant suit. The facts which give1 rise to the present application are as follows. The defendant-tenant held 13 jamas under the plaintiff. There was settlement and survey under the Bengal Tenancy Act, and the record was prepared by the settlement officer, and these 13 jamas were amalgamated and the rent shown to be Rs. 170 odd. After the final publication of the record an application was made by the landlord under Section 105. Bengal Tenancy Act, for assessment of fair and equitable rent. The tenant-defendant filed objections in that proceeding. The objection being that he did not hold one jama, but 13 separate jamas under the landlord, and the settlement officer was wrong in consolidating those jamas without his consent. The proceeding is still pending, the settlement officer not having come to any decision, whatsoever, upon that application. In the meantime, the landlord instituted a rent suit with reference to one of those holdings. The learned Munsif held that the present suit is not maintainable, regard being had to the provisions of Section 109, Bengal Tenancy Act. There was an application for revision before the District Judge. The District Judge came to the conclusion, that the learned Munsif was wrong in the view he has taken, and he remanded the ease to him for trial of the case.
2. Before me three points have been taken by the learned vakil for the petitioner. First that under Section 109 the rent suit is not maintainable; second, that it was not open to the plaintiff to frame the suit or to proceed with the suit in the way he did; and third, the learned District Judge was wrong in exercising a jurisdiction not vested is him under Section 153, Bengal Tenancy Act. With reference to the first question as to the maintainability of the present suit under Section 109, Bengal Tenancy Act, I do not agree with the contention put forward by the learned vakil. Section 109 says:
Subject to the provisions of Section 109A, a civil Court shall not entertain any application or suit concerning any matter, which is or has already been the subject of an application, nude, suit instituted or proceedings taken under Sections 105 to 108.
3. Here the application was made by the landlord the subject-matter of the application was ascertainment of fair and equitable rent. What the subject-matter of a proceeding is must be ascertained by looking into the application itself, which initiates the proceeding.
4. The learned vakil contends, that in order to dispose of any application under Section 106, Bengal Tenancy Act, the provisions of Section 105A should be looked into; and Section 105 gives a good deal of power to the settlement officer to decide questions, which may be raised by the parties ancillary to the main question raised by the application itself. These questions still being ancillary questions, those will not form the subject-matter of the application made by the applicant, which initiates the proceeding. A Judge may have to decide various matters and. various issues which are raised by the parties in the course of the trial, but certainly what the subject-matter of the suit or application is must be determined by looking into the application itself or the plaint of the suit itself. This question seem to have been raised in a case, Nawab Bahadur of Murshidabad v. Ahmad Hossein  44 Cal. 783. In that case the facts are given correctly in the head-note.
Where in a proceeding instituted by the landlord for settlement of rent under Section 105, no questions as to tenants being mukurari, maurasi raiyats and not tenure-holders, and the lands held by them being not one tenure, but distinct raiyati holdings were raised, Section 109 was no bar to the tenants suing for a declaration of these rights.
5. This is a converse case, because the subsequent suit was instituted by the tenant. In the course of the judgment the learned Judges referring to the objections, that such a suit is not maintainable under Section 109, say:
Whether the tenants were or were not aware of the proceedings under Chap 10, the fact remains that the matters now in controversy did not form the subject of investigation under Section 105. Consequently, on a plain and literal reading of Section 109, the position cannot be maintained chat the present suit concerns a matter, which has already been the subject of an application under Section 105. The appellant, however, urge3 us to put a wider construction upon Section 109. He contends that, as in a case, where Section 11, Civil P.C., is applicable, a question which might and should have been raised is deemed to have beau raised and decided, we should hold under Section 105, that a matter has been the subject of an application under Section 103, whenever it might, if the defendant has so chosen, have been raised and decided under Section 105 read with Section 105A, We are of opinion that this contention is unsound. If we were to aooept the eonstruo-tion put forward by the appellant, we should hava to read into Section 109 words which are not to be found there; we cannot hold on the Analogy of the doctrine of constructive res judicta, that the jurisdiction of the civil Court has been constructively excluded even when a point has been neither raised nor decided under Section 105 read with Section 105A. In this connexion, we may observe that Sections 105 and 109 were inserted in the Bengal Tenancy Act, by Act 3 of 1893, B.C. Section 105A was subsequently introduced into the Bengal Tenancy Act, by Section 2G, Act 1 of 1907, B.C. But though the scope of Section 105 was thus widened and Section 105A was included in. Section 109, the language of Section 109 was left unaltered. If the legislature had intended to adopt the view put forward by the appellant, the language of Section 109 would, no doubt, have bean suitably modified. As pointed out by this Court in a long line of cases amongst them, in Pandab Dowari v. Ananda Kishun  12 C.L.J. 195; Sashi Bhusan v. Eshabar  19 C.W.N. 636 and Sasi Bhusan Hazra v. Aswini Kumar Samanta  19 C.W.N. 637, to attract the operation of Section 109, it is essential to establish that the civil suit has foe its subject a matter which has already formed a subject of an application under Section 105. These cases were decided before the introduction of Section 105A into the Bengal-Tenancy Act. But as the introduction of Section 105A has not altered, for our present prupose, the scope of Section 109, Section 109 must now be construed on the same lines as before the introduction of Section 105A.
6. This case was followed subsequently in two other cases. I need not refer to them in detail. One is reported in Priyambada Debi v. Priyanath A.I.R. 1926 Cal. 822 and the other in Mahendra Nath v. Probal Chandra A.I.R. 1926 Cal. 980. The learned vakil tries to distinguish the last case on the ground that there the learned Judges were correct, because Section 109 was no actual bar; but referring to the arguments and pleadings of that appeal, I find that it was objected that Section 109 was a bar. But the learned Judges pointed out that the institution of a suit for rent was not a proceeding under any of the sections of the Bengal Tenancy Act, and as such Section 109 would not be a bar to the institution of such a suit. With reference to the care reported in Apurba Krishna Roy v. Shyam Ch. Paramanik  24 C.W.N. 223, there are stray observations, which may go to support the learned vakil for the petitioner; but what the learned Judges had actually decided was whether Section 107 was applicable to the case and they said is would be. The learned Judges held (at page 225), with regard to the decision of the settlement officer in that case, that
We think, therefore, that the decision of the settlement officer under Section 105A, is binding upon the plaintiff in the present case having regard to the provisions of Section 107, Bengal Tenancy Act.
7. Again on the same page the learned Judges observed:
In the present case, as we have seen, the question was directly, raised and there was an express issue on the point, and even though the defendant did not adduce any evidence in Court, the decision of the Settlement Officer was open to appeal, and to second appeal to this Court.
8. But no such second appeal was preferred. Incidentally, they referred to the bar under Section 109, According to them, reading the judgment closely, it would appear, that their opinion was that in such a case the defence taken in the written statement may form the subject-matter of an application under Section 109. Regard being had to the decided cases referred to above, I prefer to follow them in preference to Apurba Krishna Roy v. Shyam Ch. Paramanik  24 C.W.N. 223. That disposes of the first contention of the learned vakil.
9. As to the second point: it is contended that the present suit is inconsistent with the plaintiff's application under Section 105. I do not find that this question was raised before the District Judge. It is for the first time raised before me. With reference to this point, I observe that so far as the plaint is concerned (a part of the plaint has been read out to me), I do not find that he accepted the consolidation; if such consolidation had been accepted, the result would have been to put the plaint out of Court. But from what has been read out to me I do not understand the plaint to be in that way.
10. As to the third objection, that is, the District Judge has no jurisdiction to interfere under Section 153 : I think the learned District Judge had such jurisdiction regard being had to the fact that the learned Munsif declined to exercise jurisdiction, wrongly on the ground that Section 109 barred the present suit, and what he did was not to go on with the suit, but dismissed it. In these circumstances, I think the learned District Judge was perfectly justified in interfering under the revisional powers under Section 153, Bengal Tenancy Act. All the points having failed, the rule is discharged with costs, I assess the Shearing-fee at two gold mohurs.