(Maharaja Bahadur) Ram Ranvijaya Prasad Singh vs Muni Pande and Others

Mohamad Noor, J.—This second appeal is by the plaintiff whose suit for assessment of fair and equitable rent of kabil-lagan land appertaining to khata No. 53 of village Karanpura and for recovery of damages for use and occupation of the same has been dismissed by both the Courts below. The plaintiff is the sixteen annas proprietor of the village and during the settlement operations of the village in the year 1913 the land involved in the suit was recorded as kabil-lagan. The plaintiff filed an application before the Settlement Officer u/s 105, Bihar Tenancy Act, for settlement of fair rent of the land. The defendants denied the plaintiff''s right to get any rent fixed on the land.

Thereupon the plain, tiff withdrew his application with leave to bring a fresh suit. He did not bring any suit till the year 1933 when the present suit was instituted. The learned Munsif dismissed the suit. Apart from deciding other issues which are not necessary for the purpose of this appeal, he held that Section 109, Bihar Tenancy Act was a bar to the suit. He also held that as the defendants denied so far back as 1913 the plaintiff''s right to get rent of the land the plaintiff''s suit was barred by limitation. The plaintiff appealed and the learned District Judge has dismissed his appeal on the ground that Section 109, Bihar Tenancy Act was a bar to the plaintiff''s claim. He did not decide other issues involved in the suit which were decided by the learned Munsif.

It is settled law now that withdrawal of an application u/s 105 or of a suit u/s 106, Bihar Tenancy Act, comes within the mischief of Section 109 of the Act. There was some conflict of decisions in this respect, but the question was settled at rest by the decision of the Privy Council in Reshee Cashe Law v. Satish Chandra Pal A.I.R.1929. P.C. 134 where their Lordships approved the Full Bench decision of the Calcutta High Court in Becharam Choudhuri and Others Vs. Purna Chandra Chatterji and Others, . Therefore the withdrawal of the application by the plaintiff debars the Civil Court from entertaining a suit on the same matter. No doubt this Section will not apply if the subject-matter of the suit is different from the subject-matter of the application. This was the view taken in Srinandan Prasad Singh v. Mithan Mahton A.I.R.1935. Pat 11 wherein by implication, though not expressly, a decision of a learned Judge of this Court in Kandhaya Lal v. Sheotahal Ahir A.I.R.1930. Pat 69 was dissented from. In both these cases, the question was about the enhancement of the rent.

It was held in Srinandan Prasad Singh v. Mithan Mahton A.I.R.1935. Pat 11 that the landlord is entitled to sue for enhancement after IS years of the withdrawal of application for settlement of rent u/s 105 of the Act as a landlord has a fresh right to sue for enhancement after every 15 years. The only question therefore is whether the present suit relates to the same matter as the application u/s 105 of the Act which was withdrawn. I am constrained to hold that it is rising a fair rent stands upon a different footing from the enhancement of the rent. Once the Court refuses to fix rent on a kabil-lagan land, a subsequent suit for the same relief is not maintainable and will be barred by res judicata. Therefore if the plaintiff withdrew the suit for settlement of rent and did not bring a fresh suit for which he got leave within the time allowed by law, his right to have a rent fixed is, in my opinion, barred for ever. In this case there is another difficulty in the way of the plaintiff. It appears that in the written statement of the case, u/s 105 of the Act, the defendant had denied the plaintiff''s right to get any rent in respect of the land in suit. Since then, the defendant''s possession over the land must be held to have been in assertion of a right to bold the land rent-free, and as more than 12 years have expired since then theft plaintiff''s suit is obviously barred. The learned Munsif relied upon a decision of the Calcutta High Court in Birendra Kishore v. Roshan Khan (1912) 39 Cal 459 where in similar circumstances it was held that inasmuch as a complete hostile right was claimed by the defendants to the knowledge of the plaintiffs and no suit was brought until more than 12 years after, the suit as framed was barred by limitation.

In my opinion therefore the decrees of the Courts below are correct.

The result is that the appeal is dismissed. As there was no appearance on behalf of the respondents, I make no order for costs. I certify that this is a fib case for Letters Patent appeal.