Interpretation of the subject-matter under Section 109 and the jurisdiction of the District Judge under Section 153.

JUDGMENT

Majumdar, J. - This application arises out of an application for revision by the defendant in a rant suit. The facts which give1 rise to the present application are as follows. The defendant-tenant held 13 jamas under the plaintiff. There was settlement and survey under the Bengal Tenancy Act, and the record was prepared by the settlement officer, and these 13 jamas were amalgamated and the rent shown to be Rs. 170 odd. After the final publication of the record an application was made by the landlord u/s 105. Bengal Tenancy Act, for assessment of fair and equitable rent. The tenant-defendant filed objections in that proceeding. The objection being that he did not hold one jama, but 13 separate jamas under the landlord, and the settlement officer was wrong in consolidating those jamas without his consent. The proceeding is still pending, the settlement officer not having come to any decision, whatsoever, upon that application. In the meantime, the landlord instituted a rent suit with reference to one of those holdings. The learned Munsif held that the present suit is not maintainable, regard being had to the provisions of Section 109, Bengal Tenancy Act. There was an application for revision before the District Judge. The District Judge came to the conclusion, that the learned Munsif was wrong in the view he has taken, and he remanded the ease to him for trial of the case.

2. Before me three points have been taken by the learned vakil for the petitioner. First that u/s 109 the rent suit is not maintainable; second, that it was not open to the plaintiff to frame the suit or to proceed with the suit in the way he did; and third, the learned District Judge was wrong in exercising a jurisdiction not vested is him u/s 153, Bengal Tenancy Act. With reference to the first question as to the maintainability of the present suit u/s 109, Bengal Tenancy Act, I do not agree with the contention put forward by the learned vakil. Section 109 says:

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, nude, suit instituted or proceedings taken under Sections 105 to 108.

3. Here the application was made by the landlord the subject-matter of the application was ascertainment of fair and equitable rent. What the subject-matter of a proceeding is must be ascertained by looking into the application itself, which initiates the proceeding.

4. The learned vakil contends, that in order to dispose of any application u/s 106, Bengal Tenancy Act, the provisions of Section 105A should be looked into; and Section 105 gives a good deal of power to the settlement officer to decide questions, which may be raised by the parties ancillary to the main question raised by the application itself. These questions still being ancillary questions, those will not form the subject-matter of the application made by the applicant, which initiates the proceeding. A Judge may have to decide various matters and. various issues which are raised by the parties in the course of the trial, but certainly what the subject-matter of the suit or application is must be determined by looking into the application itself or the plaint of the suit itself. This question seem to have been raised in a case, Nawab Bahadur of Murshidabad v. Ahmad Hossein [1916] 44 Cal. 783. In that case the facts are given correctly in the head-note.

Where in a proceeding instituted by the landlord for settlement of rent u/s 105, no questions as to tenants being mukurari, maurasi raiyats and not tenure-holders, and the lands held by them being not one tenure, but distinct raiyati holdings were raised, Section 109 was no bar to the tenants suing for a declaration of these rights.

5. This is a converse case, because the subsequent suit was instituted by the tenant. In the course of the judgment the learned Judges referring to the objections, that such a suit is not maintainable u/s