1. There is no substance in S. A, Nos. 968, 970, 979 and 980 of 1928 and they must be dismissed with costs.
2. As regards the other appeals, it is argued on behalf of the appellant that the procedure adopted by the lower Appellate Court is not in conformity with the direction given in Sections 30 and 32, Bengal Tenancy Act. The suits are for enhancement of rent on the ground of additional area under Section 52 and of rise in the price of food crops under Section 30(6), Bengal Tenancy Act, In 1916 after the publication of the Record of Rights applications were made by the plaintiff under Section 105, Bengal Tenancy Act, for enhancement of rent under Section 52 and also under Section 30 (6). Those applications were withdrawn so that on the authority of the Full Bench decision, Becharam Choudhuri v. Puran Chandra Chatterji 88 Ind. Cas. 637; 52 C. 894; 41 C. L. J. 456; 29 C. W. N. 755; A. I. R. 1925 Cal. 845 (F. B.), the same matter cannot form the subject of subsequent suits. The trial Court in view of the Full Bench decision held that the plaintiff’s claim for enhancement under Section 52 must be disallowed in view of Section 109, Bengal Tenancy Act. But with regard to her claim under Section 30 it was of opinion that it was not affected by Section 109, Bengal Tenancy Act. After a consideration of the evidence in the case it came to the conclusion that the plaintiff was entitled to enhancement at 3 annas per rupee under Section 30 (b). Both parties appealed. The plaintiffs appeals were dismissed by the lower Appellate Court, but the defendant’s appeals were al lowed as the learned Subordinate Judge was of opinion that in the circumstances of the case no enhancement should be granted under Section 30. The learned Subordinate Judge says that under Section 32, Bengal Tenancy Act, the Court is required to com pare the average prices during the ten years immediately preceding the institution of the suit with the average prices during any other convenient ten years. But as he thinks that the ten years immediately pre ceding the institution of the suit which was in 1923, included the period of the Great War during which the prices were abnormally high, he holds that Section 32 cannot be properly applied to the case. The Munsif compared the prices during the periods from 1903 to 1912 and 1913 to 1922 and came to the conclusion which he embodied in his decree. We are not quite sure that the learned Subordinate Judge is not right in saying that the comparison between the two periods mentioned by the Munsif was not the proper method of arriving at a finding as to what should be the just increment of rent to be paid by the tenants. But the learned Judge seems to be under the impression that the periods which the law re quires him to compare must be consecutive periods; that is ten years immediately before the institution of the suit and ten years immediately before that period. But the law does not say so.
3. Under Section 32 (a) the Court shall compare the average prices during the decennial period immediately preceding the institution of the suit with the average prices during such other decennial periods as to it may appear equitable and practicable. The learned Subordinate Judge has found that the decennial periods before the institution of the suit should not be adopted due to the abnormal state of things during a portion of that period. He, therefore, compares the prices prevalent in the period from 1918 to 1922 with those prevalent during the preceding period from 1913 to 1917 and finds that the increase would be like four to six pies a rupee–an increase which in his opinion is very small. We quite see the reason of the view of the learned Sub-ordinate Judge that the decennial period immediately preceding the institution of the suit should not form the basis of calculation. But Section 32(c) gives the option to the Court to take any shorter periods if in its opinion it is not practicable to take the decennial periods prescribed in Clause (a). The learned Subordinate Judge has acted undoubtedly under Section 32 (c) but the error which he is said to have committed is that he has compared the period of five years immediately before the institution of the suit with the period immediately before those five years but has not compared the period immediately before the institution of the suit with any other period during the currency of the tenancy in which the normal state of things prevailed. Then the Subordinate Judge has referred to certain evidence in the case and observed that according to the plaintiff’s own witnesses the rents paid by the defendants are the highest in the locality. After making this observation he records his finding in these words:
So taking into consideration the fact that the increase will be very small, if granted and the other circumstances noted above I think that no enhancement should be granted even under Section 32 (c).
4. What he seems to mean is that even after he had compared shorter periods as pro vided by Section 32 (c) the increase would be so small that in conjunction with the other circumstances such as higher rent paid by the defendants, there should be no enhancement granted under Section 32.
5. The learned Advocate for the defendants argues, firstly, that the present applications of the plaintiff are barred under Section 109, Bengal Tenancy Act; and though the Courts below have taken a different view he submits that it is wrong and that he is entitled to support on this ground the decree of the lower Appellate Court. It is argued that the subject-matter of the applications under Section 105 is the same as the subject-matter of the present suits; in other words in the applications under Section 105, Bengal Tenancy Act, the plaintiff prayed for enhancement of rent under Section 30 and the same claim is made in the present suits. Accordingly the subject-matter of the two proceedings is the same and the suits must be held barred by Section 109, Bengal Tenancy Act The expression “subject-matter” is used in the Full Bench case of Bechamm Chaudhuri v. Puran Chandra Chatterji 88 Ind. Cas. 637; 52 C. 894; 41 C. L. J. 456; 29 C. W. N. 755; A. I. R. 1925 Cal. 845 (F. B.) But Section 109 uses the word “matter”. It says that a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made under Section 105. We take it that the expression subject-matter used in the Full Bench case is used in the same sense in which the word ” matter ” has been used in Section 109. Now the matter which was before the Court in proceedings under Section 105, was the right of the plaintiff to claim enhancement owing to rise in the price of food crops during the period of ten years preceding 1916 as compared with that in any period of ten years preceding that period. In the present suit the matter involved is whether there has been a rise in the price of the food crops during the ten years preceding 1923 as compared with any other period of ten years. The two proceedings are, therefore, not the same and Section 103 is no bar to the present suits.
6. It is next argued on behalf of the respondents that the conclusion of the learned Judge as embodied in his findings is conclusive on a question of fact and as such should not be disturbed by this Court; and that, moreover, the order passed by him was one under Section 35, Bengal Tenancy Act, which gives it a discretion in granting or refusing an enhancement in consideration of particular circum stances in these cases and this Court should not interfere with such discretion in second appeals. As far as the bare statement of the law is concerned, the respondents’ contention must be right. But in the present cases the learned Sub ordinate Judge has based his conclusion on two facts. The first is that if the enhancement is granted, the increase will be very small; and the second is that the rents paid by the defendants are higher than the prevailing rate of rent. As his conclusion is based upon these grounds, if one of these grounds is found to be incorrect in law the conclusion of the lower Appellate Court should not be considered as a finding of fact. Now the learned Subordinate Judge has come to the conclusion that the increase, if granted, would be very small on a comparison of the prices prevailing during the five years (1917 to 1922) with those during the five years 1913 to 1917–a period during which according to him the prices were abnormally high. As we have said that there is nothing in the law to prevent the Court to compare the period immediately before the suit with any other period during the currency of tenancy, what the learned Judge should have done was to compare the period from 1918 to 1922 with any other period before 1914. This the learned Judge has not done. If he had done that and had come to the conclusion that the increase would be so small that no enhancement should be granted he would have been justified in refusing enhancement of rent. As he has not done so, we are constrained to send the cases back for the purpose of such comparison and arriving at such conclusion on the same as he thinks proper. If after making the comparison and taking into consideration the evidence and all the circumstances of the case he comes to the conclusion that there should be no increase under Section 35, he is entitled to express his opinion in clear language, namely, by stating that any enhancement will be under the circumstances of the case unfair or unreasonable.
7. We accordingly set aside the decrees of the lower Appellate Court, and send the cases back to that Court for a re-hearing of the appeal in the light of the observation made. Costs will abide the result.Case remanded.