The main legal principle established in the judgment is that Section 109 of the Bengal Tenancy Act prohibits civil courts from entertaining suits for enhancement of rent once an application is made under Sections 105 to 108, regardless of the manner of disposal of the application.

JUDGMENT

Walmsley, J. - These appeals are preferred by the defendants and they arise from suits brought by the landlord for rent and for enhancement of the existing rents. The landlord's claim was made u/s 7 of the Bengal Tenancy Act.

2. In the record-of-rights the tenures were described as permanent, but gar mokurari. The defendants asserted that the latter part of the entry was erroneous and that their rents were really fixed.

3. After the publication of the record-of-rights the landlord presented an application u/s 105 of the Tenancy Act for settlement of a fair rent on these tenures: But he withdrew the application and obtained from the Settlement Officer an order permitting him to institute civil suits for the same purpose.

4. Both the Courts below have held that Section 109 of the Tenancy Act does not bar the suits, on the ground that the application u/s 105 was withdrawn with permission to bring civil suits. On the merits, however, they disagreed, that is so far as the claim for enhancement is concerned. The first Court found that the defendants were entitled to a presumption u/s 50 of the Act, while the appellate Court held that the defendants could not claim the benefit of that presumption. The result was that the latter Court remanded the suits to the first Court for the determination of fair rents. It is against these orders of remand that the appeals are directed.

5. The principal argument on behalf of the defendants is that Section 109 of the Tenancy Act does bar the suits. Two other arguments were put forward, namely, that the status of the defendants was that of raiyats and that in suit No. 2 at any rate the evidence as to uniformity of rent is conclusive: but on examination of the record it appears that one of these arguments was not set out in the memorandum of appeal, and that the other is disposed of by the Judge's acceptance of the landlord's jama wasil baki papers.

6. On the principal question reliance is placed by the landlord on the case of Saraj Kumar Acharji Chowdhury and Others Vs. Umed Ali Howladar and Others and Gopal Chandra Saha and Others, AIR 1922 Cal 251 . That case, however, is in opposition to other decisions of an earlier and a later date. There is the case of Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 followed by the case of Dino Nath Sikdar and Others Vs. Anadi Krishna Dutt and Others, AIR 1924 Cal 854 . (Appeal from Appellate Decree No. 1358 of 1919, decided on January 16,1923) in which the judgment was delivered by one of the Judges who decided Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 . This later case is important because it shows that in the earlier case no emphasis was placed upon the absence of permission to withdraw, the point upon which Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 was distinguished in Saraj Kumar Acharji Chowdhury and Others Vs. Umed Ali Howladar and Others and Gopal Chandra Saha and Others, AIR 1922 Cal 251 . Again there is the case of Sasi Kanta Acharjya Vs. Salim Sheikh, AIR 1923 Cal 624 . I think therefore that the current of authority is against the view taken by the lower appellate Court. So far as I am myself concerned, moreover, I am in the position that I was a party to the judgments in the case of Dino Nath Sikdar and Others Vs. Anadi Krishna Dutt and Others, AIR 1924 Cal 854 and of Sasi Kanta Acharjya Vs. Salim Sheikh, AIR 1923 Cal 624 and I have not heard any argument which would induce me to change my views.

7. It is said that we ought to refer the case to a Full Bench, but I venture to think that the decisions to which I have referred make that course unnecessary.

8. In my opinion the appeals should be allowed, and the order of remand set aside.

9. My learned brother is of opinion that the appeals should be dismissed with costs. According to Section 36 of the Letters Patent as explained in the case of Bhaidas Shivdas v. Bai Gulab