Judgement

Consolidated Appeal (No. 16 of 1928) from two decrees of the High Court (January 26, 1926) affirming two decrees of the Subordinate Judge of Midnapore.

The appellant brought two suits in the Civil Court alleging that-the record of rights of certain villages published in 1916 recorded that his tenant, the first respondent-defendant, was in possession of a greater area than that Included in two pottahs granted to him ; the plaintiff claimed possession of the excess area with mesne profits, or alternatively that the rent should be fixed. As to the tenancy in the first case, he had previously made applications to the Revenue Courts under the Bengal Tenancy Act, 1885, s. 105, for the settlement of rent of the excess area, and under s. 106 for a decision of the dispute so arising on the entry in the record. All three applications had been withdrawn, two by the express leave of the Court. With regard to the other tenancy, there had been an application under s. 105 and an application under s. 106 ; one was allowed to be withdrawn and the other was dismissed for default in payment of the Court fees.

Law Rep. 56 Ind. App. 179 ( 1928- 1929)

Raja Reshee C ase Law V. Satis Chandra Pal 40

The High Court, affirming decrees of the trial judge, dismissed the suits. The learned judges (Chatterjea A.C.J. and Page J.) held upon the authority of the Full Bench in Puma Chandra Chatterjee v. Narendra Nath Chowdhury (( 1925) I. L. R. 52 C. 894.) that having regard to the previous applications, s. 109 of the Bengal Tenancy Act, 1885, prevented the suits from being maintained, whether the applications were or were not withdrawn.

1929. Feb. 21. De Gruyther K.C. and Dube for the appellant. Sect. 109 does not apply when the previous application has been withdrawn, at any rate, if it is withdrawn with leave to bring a fresh suit. The section applies only if a decision of the Revenue Court has been given, or is in course of being given. By s. 107 the Code of Civil Procedure applies, and consequently Order xxiii., r. 1, which enables a plaintiff to withdraw his suit and empowers the Court to give him leave to bring a fresh suit. Sect. 109 of the Act of 1885 in effect merely reproduces ss. 10, 11 of the Code. The decision in Puma Chandra Chatterjee v. Narendra Nath Chowdhury (( 1925) I. L. R. 52 C. 894.) was erroneous.

Graham-Dixon, for the first respondent, was not called upon.

March 5. The judgment of their Lordships was delivered by

LORD SALVESEN. These appeals have been brought to settle a question which has been frequently discussed before Indian tribunals and has resulted in conflicting decisions. So far as India is concerned the law was finally settled by a decision of the Full Bench of the High Court of Bengal, Puma Chandra Chatterjee v. Narendra Nath Chowdhury. (( 1925) I. L. R. 52 C. 894.) In the present case the judgment followed the decision of the Full Bench, and the object of the present appeals is in effect, to bring that decision under review.

As the facts are not in controversy it is unnecessary to recapitulate the summary of these contained in the judgment appealed from. It is sufficient to say that the appellant who is the owner of a large area of ground, of which the first respondent (who alone appeared before the Board) holds a lease, and presented three applications in the Court of the Revenue Officer, one under s. 106 and two under s. 105 of the Bengal Tenancy Act, 1885. The latter were withdrawn without any express leave being granted to bring a fresh suit, while in the former such permission was granted. Thereafter, the present suits (two) were filed by the appellant in the Court of the Subordinate Judge of Midnapore, dealing admittedly with the same subject matter as was contained in the previous applications in the Court of the Revenue Officer.

The respondents pleaded that the suits were barred under s. 109 of the Bengal Tenancy Act and this plea has been sustained in all the Courts below.

Sect. 109 is in these terms " Subje