Authored By : Rai Surendra Nath Guha, Bartley

Rai Surendra Nath Guha and Bartley, JJ.

1. This is an appeal by the Plaintiffs in a suit for rent.The claim in suit was for recovery of arrears of rent for the period from 1332to 1335 B.S. at the annual rate of Rs. 400 with damages. The defence of thetenant Defendant was that the rent annually payable was Rs. 40. The case forthe Defendant before the court was negatived by the trial court, and a decreewas passed in favour of the Plaintiffs, with the exception of the claim forrent for the year 1332 B.S., the Plaintiffs having realised the same; and, asthe case now stands, we are not concerned with the rent for the year 1332 B.S.On appeal by the Defendant, the learned District Judge of Khulna reversed thedecree of the trial court, on a ground raised by the Defendant in the suit forthe first time in the court of appeal below. The learned judge gave effect tothe Defendants contention before him that the Plaintiffs being occupancyraiyats, and the Defendant an under- raiyat under the Plaintiffs, who held at arental of Rs. 21, the Defendant, by the operation of Section 48 of the BengalTenancy Act, as it stood before Bengal Act IV of 1928 came into force, couldnot recover rent by suit, at any rate in excess of 50 per cent, of the rentpayable by the Plaintiffs. The learned District Judge is, in our judgment,right in holding that Section 48 as enacted by the Act of 1928 cannot haveretrospective effect, although the section as it stood before was held to havesuch an effect, in accordance with the decisions of this Court in the case ofSitanath Midda v. Basudeb Midda (1900) 2 C.L.J. 540. and in Guru Dass Sheet v.Nand Kishare Pal (1898) I.L.R. 26 Calc. 199. The new Section 48, as it standsafter Act IV of 1928 came into operation,--

When an under-raiyat is admitted to occupation of land, heshall, subject to the provisions of this Act, become liable to pay such rent asmay be agreed on between himself and his landlord at the time of his admission.Provided that the rent or rate of rent agreed upon shall not be less than therent or the rate of rent payable by the raiyat to his landlord--

cannot, in our opinion, be construed as having aretrospective effect. Under the ordinary canon of construction of statutessomething much more definite should be necessary in order to revive a right torecover rent irrespective of the previously existing restriction, or to affectthe statutory disability of the raiyat to recover more than a certainpercentage, as this disability previously existed. The! old Section 48 read asfollows:-

The landlord of an under- raiyat holding at a money rentshall not be entitled to recover rent exceeding the rent which he himself paysby more than the following percentage of the same, namely:

(a) when the rent payable by the under- raiyat is payable bya registered agreement--50 per cent ; and

(6) in any other case--25 per cent.

2. In the view of the clear words of the statute, thelearned judge in the court below is right in holding that the old Section 48 ofthe Bengal Tenancy Act applied in the case before us, in so far as the cause ofaction for the claim in suit arose before February, 1929, when Act IV of 1928,substituting the new Section 48 for the old Section 48, came into operation. Inthe above view of the case, the claim for rent at the rate of Rs. 400 for theyears 1333 and 1334 B.S. could not be allowed in the suit.

3. The rent for the year 1335 B.S., as claimed by thePlaintiffs Appellants stands on a different footing. At the date of theinstitution of the suit and on the date, on which the cause of action for thesuit for the recovery of rent for the year 1335 B.S. arose, the old Section 48of the Bengal Tenancy Act was non-existent. It was substituted by the newSection 48 in February, 1929. The disability, which was imposed by the previouslaw having been removed, there was nothing that stood in the way of thePlaintiffs recovering rent at the contract rate, when the cause of action forthe same arose. The effect of substitution of the new Section 48 for the oldSection 48 by Section 31 of Act IV of 1928, was that the old section wasrepealed. The effect of repeal of a statute in the absence of saving clauses isthat it has to be considered as. if the statute, so repealed, had neverexisted. It ceases to be operative, unless there is any clause in the new statutepreserving the old statute--the underlying principle being, that there cannotbe two inconsistent codes in the same matter and if the previous statute has tobe preserved that must be done expressly [See Watson v. Winch [1916] 1 K.B.688.]. Examining the facts of the case before us in the light of the aboveprinciples, and keeping in view the circumstance that, at the date of theaccrual of the cause of action for a suit for rent for the year 1335 B.S.,which was the last date of that year, according to the terms of the contractbetween the parties concerned, the Plaintiffs were entitled to a decree forrent at the rate of Rs. 400 for the year 1335 B.S.

4. The Plaintiffs suit so far as it related to the claimfor rent at the rate of Rs. 400 for the years 1333 and 1334 B.S., the cause ofaction for the same having accrued at a time when the disability in the matterof recovery of rent by suit by persons in the position of the Plaintiffs, wasexisting, cannot be allowed. The Plaintiffs Appellants are entitled only torecover, by suit, rent at the rate admissible under the old Section 48 beforeBengal Act IV of 1928 came into operation.

5. In the result, the dismissal of the Plaintiffs suit bythe lower appellate court, so far as it related to a claim for rent for theyears 1333 and 1334 B.S. is modified in the manner indicated above. Thedecision of the court of appeal, however, so far as it relates to the claim forrent for the year 1335 B.S. is set aside. The Plaintiffs Appellants are heldentitled to recover rent for the year 1335 B.S. at the annual rate of Rs. 400as claimed by them with damages as claimed in the suit.

6. The appeal is allowed in part. The Plaintiffs Appellantsare to get their costs in the litigation, including the costs in this appeal,from the Defendants Respondents.

.

Haripada Pal Ghoshvs. Tofajaddi Ijardar (11.07.1933- CALHC)