1. The plaintiff brought the suit out of which this appeal arises to recover arrears of rent for the years 1324, 1325 and part of 1326 B.S. claiming increase of rent on the ground of increase in area. The first Court held that the plaintiff was entitled to increase of rent though not to the full amount claimed. On appeal it was held that the Suit was not maintainable as the plaintiff had made an application under Section 105 of the Bengal Tenancy Act claiming additional rent for excess area and that application was dismissed for non-prosecution. Having regard to the recent Full Bench decision in the case of Becharam Choudhuri v. Puran Chandra Chatterji 88 Ind. Cas. 637 : 41 C.L.J. 456 : 29 C.W.N. 755 : (1925) A.I.R. (C.) 845, there can be no doubt that the lower Appellate Court is right so far as it decides that the claim for additional rent for excess area cannot be maintained in this suit. But it is contended on behalf of the appellant that there is no reason why the plaintiff should not get rent at the old rate which is undisputed. From the plaint and the written statement it appears that there was no dispute that the original rental of the holding was Rs. 22 and pics 11.
2. Apart from the question of enhancement the only matter about which there appears from the pleadings to have been any dispute was the question of possession of 4 gandas of land in Dag No. 442. That dispute need not be decided in the suit. In the case of Abeda Khatun v. Majub Ali Chaudhury 59 Ind. Cas. 760 : 48 C. 157 : 24 C.W.N. (1020} 33 C.L.J. 304. (sic) the facts were somewhat similar to the facts of the present case. In that case the plaintiffs instituted a suit for enhancement of rent and recovery of arrears of rent at an enhanced rate, one of the alleged grounds for enhancement being increase in area. There also the plaintiffs had filed an application under Section 105 of the Bengal Tenancy Act for enhancement of rent on the same ground. It was held that Section 109 was a bar to the plaintiffs claiming enhancement of rent in that suit. But the decree which had been granted to the plaintiffs by the first Court for arrears of rent at the existing rate was restored.
3. We think that now that the claim for enchancement has been abandoned by the plaintiff the suit may be treated as a suit for rent at the original rate and he is entitled to a decree for arrears of rent at that rate.
4. We accordingly decree this appeal and set aside the judgment and decree of the lower Appellate Court. The plaintiff will get a decree for arrears of rent for the years 1324, 1325 and the Sraban kist of 1326 B.S. at the rate of Rs. 22 and pies 11 with cesses at Rs. 1-2-7 per year, that is to say, for two years and four months.
5. The plaintiff will get proportionate costs in all Courts with interest at six per cent. per annum.
6. The contending defendant will get proportionate costs in all Courts with interest at 6 per cent. per annum.