1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Panton in a suit for recovery of arrears of rent.
2. The plaintiff claimed rent at the rate of Rs. 22-1 per year in respect of four years from the 14th April 1913 to the 13th April 1917. The defendants pleaded that rent was payable at the rate of Rs. 12-2 per annum, The suit was instituted on the 21st April 1917 and was decided by the First Court on the 16th April 1918. The claim of the plaintiffs was founded upon a Kabuliyat executed by the predecessors of the defendants on the 19th April 1894. The rent payable thereunder was that claimed in the suit. The defendants contended that the kabuliyat was in contravention of Section 29(b) of the Bengal Tenancy Act. The Trial Court held that the defendants had successfully proved by the production of Road-Cess Return filed by the landlords on the 26th May 1885 that the rent was originally fixed at the rate of Rs. 12-2. Consequently, there was, prima facie, an increase of Rs. 9-15 by means of the contract of the 19th April 1894. This was plainly in contravention of Section 29. In these circumstances, from the decision of this Court in the case of Manindra Chandra Nandi v. Upendra Chandra Hazra 2 Ind. Cas. 828 : 36 C. 604 : 9 C.L.J. 343, it followed that as the previous rent of the tenant had been proved, it was for the plaintiffs to justify the enhancement of the rent claimed which was obviously in excess of the enhancement allowed by the Statute. The plaintiffs tried to discharge this burden by the allegation that at the time of the execution of the kabuliyat it was discovered that the defendants were in occupation of excess lands. But this was not established to the satisfaction of the Trial Judge who consequently held that the rent as fixed in the kabuliyat was not recoverable. The plaintiffs, however, contended that they were entitled to the benefit of a decision under Section 105 of the Bengal Tenancy Act which had been pronounced on the 19th September 1917 subsequent to the institution of this suit for arrears of rent and before the trial thereof. This contention was over ruled and the rent was decreed at the rate admitted by the defendants. On appeal to the Subordinate Judge the decision of the Primary Court was affirmed and Mr. Justice Panton has confirmed the decree of the Subordinate Judge.
3. In this Court the substantial contention on behalf of the plaintiff-appellant is that, by virtue of Section 109, it is not open to the tenants to contend, contrary to the decision in the proceeding under Section 105, that the rent was payable, not at the rate of Rs. 221 but at the rate of Rs. 12(sic)2. In support of this proposition reliance has been placed upon the decision of this Court in the case of Apurba Krishna Roy v. Syama Charan Pramanik 54 Ind. Cas. 952 : 24 C.W.N. 223, We are of opinion that this contention cannot be supported, however much the plain language of Section 109 may be strained.
4. Section 109 is in the following terms: '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 made, suit instituted or proceedings taken under Sections 105 to 108 both inclusive.' Let it be assumed for the moment that the expression 'entertain an application or suit' includes an application or said made or instituted before the date of the application, suit or proceeding under Sections 105 to 108. It is clear that what is barred is the entertainment of an application or suit and not the entertainment of a defence to an application or suit. In the case before us, if the contention of the appellants were to prevail, the Court would be incompetent to entertain their suit for rent, and this undoubtedly is not their object in invoking the aid of Section 109. The decision in Apurba Krishna Roy v. Syama Charan Pramanik 54 Ind. Cas. 952 : 24 C.W.N. 223 is of no assistance to them. It was there ruled that Section 109 was a bar to a civil suit by a person claiming a rent-free title when in a proceeding under Section 105 the same question arose and rent was assessed on account of the failure of the defendant in the proceeding under Section 105 to adduce evidence in support of his allegation of the rent-free title. In that case, the suit which was held to be barred under Section 109 had been instituted by the tenant who had failed to adduce evidence in support of his defence in the proceedings for settlement of fair rent under Section 105. In the present case the suit has been instituted by the landlord. It is clear that the fair rent which had been settled in the proceeding under Section 105 cannot possibly have retrospective effect. The rent was claimed from the 14th April 1913 to the 13th April 1917. The proceeding for the assessment of fair rent was instituted under Section 105 in 1914 and the decision thereunder was pronounced on the 19th September 1917. Under Section 110 the rent settled by the Revenue Officer would take effect from the beginning of the agricultural year nest after the date of the decision fixing the rent, that is nest after the 19th September 1917. This could not alter the liability for rent already incurred in respect of the period between the 14th April 1913 and the 13th April 1917. We are clearly of opinion that the view taken by Mr. Justice Panton is correct and his judgment must be affirmed.
5. The appeal is accordingly dismissed with costs.