1. The Maharajah of Tipperah brought the suit in which this appeal arises for recovery of arrears of rent from the defendants for the years 1332--35 T.E. claiming rents at the rate of Rs. 8 9. He also prayed for enhancement of rent on the ground of the rise in the price of staple food crops under the provision of Section 30(b), Bengal Tenancy Act.
2. One of the defences to the claim for enhancement was that as the lands of the tenancy consisted of undivided share the defendants could not be regarded as tenants of a holding within the meaning of Section 30-B, Bengal Tenancy Act and as such the rent could not he enhanced under the provisions thereof.
3. The Munsif decreed the claim for arrears of rent but dismissed the claim for enhancement on the ground that one of the lands comprising the jama is held in undivided share by defendants and their cosharers. The plaintiff contended that it was not open to the defendants to raise the contention that the jama was not a holding by reason of a previous decision in a proceeding under Section 104, Ben. Ten. Act, as it stood before its amendment in the year 1893. This contention of the plaintiff was negatived by the Munsiff.
4. On appeal the Subordinate Judge has affirmed the decision of the Munsif and has dismissed the claim for enhancement.
5. In this second appeal by the Maharaja it is argued that as the arable lands of the tenancy were not held in undivided shares the tenancy must be regarded as a holding and it is quite immaterial if the homestead land of the tenancy is held in undivided shares. I do not think that it is possible to disregard the fact that a portion of the tenancy includes an undivided fractional share in a parcel of land and, therefore, it could not be regarded as a holding, within the meaning of Section 3, Clause 9, Ben. Ten. Act. Section 30-B authorizes the landlord of a holding to enhance rent.
6. The present case is governed by the decision in the case of Binayak Das v. Sominuddi  24 C.W.N. 1022 where it was said that where the land was held by a raiyat consisting of entire parcels of agricultural land and an undivided share of a parcel of homestead land it was not a holding and a suit for enhancement of rent under Section 30 of the Act, did not lie in respect of such undivided share. It was next argued that the Courts below have clearly erred in law in not holding that the previous decision under Section 104, Ben. Ten. Act, operated as res judicata and barred the contention of the defendants that their jama, was not a holding. By the previous decision it is true, enhancement under Section 30(b) was allowed and fair and equitable rent was assessed after keeping in view the principles laid down in Section 30(b) of the Act. Section 104 of the old Chap. 10, ran as follows:
In any case under Section 104, Sub-section 2, Clause (d), (1) the officer shall settle a fair and equitable rent in respect of the land held by the tenant. In settling rants under this section the officer shall presume until the contrary is proved that the existing rent is fair and equitable and shall have regard to the rules laid down in this Act for guidance of the civil Court in increasing or reducing rents as the case may be.
7. The effect of the provisions of Section 104 and Section 107 of the Act, is to give the decision of the Settlement Officer the force of a decree and the matters determined by that decision could only be reopened on an appeal to the Special Judge. When that decision becomes final, question decided in that suit could not be reopened: see Durga Churn Law v. Hateen Mandal  29 Cal. 252. The question as to whether rent could be enhanced under Section 30-B because the jama is not holding was not heard and finally decided in that suit, and even if the question might and ought to have been made a defence in the former pro ceeding the matter is not res judicata as the subject-matter of the 104 proceeding is not the same as that of the present suit. The present suit is for enhancement of rent on the ground of rise of staple food craps long after the institution of the 104 proceeding and the ground on which the present suit is based is different from the ground of the proceeding under Section 104 as the 104 proceeding was based on the rise of price of the staple food crops for a period prior to 1898. In this connexion the following observations of Banerjee, J. in the case of Kailash v. Barada  24 Cal. 711, are instructive:
It is only where the subject-matter of the two suits is the same that the matter can be said to have been heard and finally decided within the meaning of Section 13 of the Code even though the matter was never raised in issue ; but it is very difficult to hold that a, matter which was never raised in issue, actually in. the former suit and which is raised in defence in a subsequent suit in which the subject-matter is different from that of the former suit shall nevertheless by virtue of Expl. 2, Section 13; be deemed to have been not only matter directly and substantially in issue but matter which has been heard and finally decided.
8. Although these observations of Mr. Justice Banerji have been commented on by their Lordships of the Judicial Committee of the Privy Council in the case of Fateh Singh v. Jagannath , their Lordships point out that in the actual decision there is no conflict with established authorities.
9. For the reasons given above I think the lower Courts have held rightly that the defendants are not barred from raising their defence to the claim for enhancement on the ground of constructive res judicata. The appeal fails and must be dismissed but without costs as the respondents have not appeared.