S.K. Ghose, J.
1. This is a second appeal by the defendants who are the landlords. The plaintiff is an occupancy raiyat in respect of a horticultural lease. This status of the tenancy was decided in a suit between the parties. The judgment in Second Appeal No. 438 of 1921 passed by this Court on 8th June 1922 shows that it was held that the tenant was not entitled to use the land by erecting structures and sheds for the purpose of habitation on different parts of the land in addition to the dwelling house which was already in existence. After this judgment, the landlords brought Title Suit No. 339 of 1921 praying for demolition of structures then existing on a portion of the tenancy and for an injunction restraining the tenant from building on other portions of the tenancy. On 15th November 1922, this suit was decreed, it being ordered that the defendant do remove the huts standing on the land described in Schedule C to the plaint and be farther perpetually restrained from erecting any hut on the land described in Schedule A to the plaint. It is not disputed that the land described in Schedule A to the plaint is the land now in suit. After this decree, it appears that the tenant attempted from time to time to erect huts whereupon execution of the decree was taken out, the last execution being in 1932. In 1933 the plaintiff brought the present suit and prayer Ka of the plaint runs as follows: It may be declared that the plaintiff is entitled to build on the said land measuring 12 1/2 cottas and that the decree obtained in Title Suit No. 302/339 of 1921 be declared to be inoperative. There is a fur. there prayer asking that the defendant be restrained from going on with the execution case arising out of the aforesaid decree. The first Court held that the plaintiff was really seeking for a declaration of her right to cover the entire land by structures. In the result, it dismissed the suit. Thereupon the plaintiff took an appeal and while the appeal was pending, the plaintiff made a prayer for amendment of prayer Ka of the plaint by substituting the words abasyak mata has griha 'dwelling house according to necessity' in place of ichchha mata grihadi 'houses etc. according to will.' This prayer was allowed. The lower Appellate Court took the view that the law has bees changed by the amendment of Section 76(2)(f) Ben. Ten. Act of 1929, that the decree which is now sought to be vacated can no longer stand in view of that amendment, and that therefore the plaintiff is entitled to succeed. Hence this second appeal by the defendants.
2. The learned Judge below has discussed at some length the question as to whether the present Section 76(2)(f), Ben. Ten. Act should have retrospective effect or not. This question is not really important. The main question is whether the new Section has introduced such a change in law as to introduce new rights in favour of the plaintiff so as to make the decree in question inoperative. Now the present Clause as compared-with the corresponding Clause (f) in the old Act will show that the changes are first that in place of the expression 'suitable dwelling house,' the present) expression is 'a dwelling house whether of masonry, bricks, stone or any other material whatsoever' and, secondly, that in place of the word 'raiyat' the word 'tenant' has been substituted. The second, change is of no relevancy. As regards the first change, the only effect is that the description of dwelling house is more specific in the present Act. For the respondents it is contended that, while the plaintiff ten. ant has no intention of covering the land with structures, she is no longer limited as regards the area of the structure by size of the tenancy. In support of this I have been referred to the case in Hari Mohan Misser v. Surendra Narayan Singh (1907) 34 Cal 718 as construing the old Act but that decision does not help the argument just referred to. In that case no doubt the area of the holding was one of the ingredients to be considered but this was in relation to the restrictions of Section 23, Ben. Ten. Act. It is certainly not correct to say that the tenant is entitled to build without reference to area even though the effect might be to render the land unfit for the purpose of the tenancy That question as to whether the effect of building will render the land unfit for tenancy has not been considered by the lower Appellate Court. But that question is res judicata by virtue of the decree which is sought to be vacated. The right of the tenant to build a dwelling house on the land existed under the old Act just as it exists under the new Act. The decree in question does not touch that right at all. Therefore the amendment of Clause (f) of Sub-section (2) of Section 76, Ben. Ten. Act does not really help the plaintiff's case. So the view taken by the lower Appellate Court is wrong. The judgment appealed against must be reversed and the judgment of the trial Court restored with costs in all the Courts. The appeal is allowed accordingly with costs throughout.