1. This is an appeal by the plaintiffs in a suit for rent. The claim an suit was for recovery of arrears of rent for the period from 1832 to 1335 B.S, at the annual rate of Rs. 400, with damages. The defence of the tenant defendant was that the rent annually payable was Rs. 40. The case for the defendant before the Court was negatived by the trial Court, and a decree was passed in favour of the plaintiffs, with the exception of the claim for rent for the year 1832 B.S, the plaintiffs having realized the same; and as the 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 the decree of the trial Court, on a ground raised by the defendant in the suit for the first time in the Court of appeal below.
2. The learned Judge gave effect to the defendant's contention before him that the plaintiffs being occupancy raiyats, and the defendant an under-raiyat under the plaintiffs, who held at a rental of Rs. 21, the defendant by the operation of Section 48 of the Bengal Tenancy Act, as it stood before Act 4 of 1923 B.C, cams into force, could not recover rent by suit any rate in excess of 50 percent of the rent payable by the plaintiffs. The learned District Judge is in our rent, right in holding that S. 48 as enacted by the Act of 1928 cannot have, retrospective effect, although the section as it stood before, was held to have such an effect, in accordance with the decisions of this Court in the case of Sitanath Mida v. Bashudeb Midda . 1905 2 CLJ 540. and in Gurudas Shet v. Nand Kisliore Pal . 1899 26 Cal 199.. The new S. 48, as it stands after Act 4 of 1928 came into operation, viz., when an under raiyat is admitted to occupation of land, he shall subject to the provisions of this Act, become liable to pay such rent as may be agreed on between himself and his landlord at the time of his admission, provided that the rent rate of rent agreed upon shall not be less than the rent or the rate of rent payable by the raiyat to his landlord, cannot, in our opinion, be construed as having a retrospective effect.
3. Under the ordinary canons of construction of statutes, something much more definite should be necessary in order to revive a right to recover rent irrespective of the previously existing restriction, or to affect the statutory disability of the raiyat, to recover more than a certain percentage, as this disability previously existed. The old S. 48 reads as follows:
“The landlord of an under-raiyat, holding at a money rent shall not be entitled to recover rent exceeding the rent which he himself pays, by more than the following percentage of the same, namely, (a) when the rent payable by the under-raiyat is payable by a registered agreement, 50 percent; and (b) in any other case 25 percent.”
4. In the view of the clear words of the statute, the learned Judge in the Courts below is right in holding that the old Section 48 of the Bengal Tenancy Act, applied in the case before us, in so far as the cause of action for the claim in suit arose before February 1929, when Act 4 of 1928, substituting the new S. 48 for the old S. 48, came into operation. In the above view of the case, the claim for rent at the rate of Rs. 400 for the years 1333 and 1334 B.S could not be allowed in the suit.
5. The rent for the year 1335 B.S as claimed by the plaintiffs-appellants, stands on a different footing. At the date of the institution of the suit, and on the date on which the cause of action for the suit for the recovery of rent for the year 1335 B.S arose, the old Section 48 of the Bengal Tenancy, Act was non-existent. It was substituted by the new S. 43 in February 1929. The disability which was imposed by the previous law having been removed, there was nothing that stood in the way of the plaintiff's recovering rent at the contract rate, when the cause of action for the same arose. The effect of substitution of the new S. 48 for the old S. 48 by S. 31, Act 4 of 1928, was that the old section was ire pealed. The effect of repeal of a statute, in the absence of saving clauses is, that it has to be considered as if the statute so repealed had never existed. It ceases to be operative, unless there is any clause in the new statute preserving the old statute: the underlying principle being, that there cannot be two inconsistent codes in the same matter and if the previous statute has to be preserved that must be done expressly: see Watson v. Winch . 1916 1 KB 688. Examining the facts of the case before us in the light of the above principles, and keeping in view the circumstance that at the date of the accrual 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 the contract between the parties concerned, the plaintiffs were entitled to a decree for rent at the rate of Ss. 400 for the year 1335 B.S
6. The plaintiffs suit so far as it related to the claim for rent at the rate of Rs. 400 for the years 1333 and 1334 B.S, the cause of action for the same having accrued at a time when the disability in the matter of recovery of rent by suit by persons in the position of the plaintiffs, was existing, cannot be allowed. The plaintiffs-appellants are entitled only to recover by suit, rent at the rate admissible under the old S. 48 before Act 4 of 1928 came into operation. In the result, the dismissal of the plaintiffs suit by the lower appellate Court. So far as it related to a claim for rent for the years 1333 and 1334 B.S is modified in the manner indicated above. The decision of the Court of appeal however so far as it relates to the claim for rent for the year 1335 B.S, is set aside. The plaintiffs-appellants are held entitled to recover rent for the year 1335 B.S at the annual rate of Rs. 400 as claimed by them with damages as claimed in the suit. The appeal is allowed in part. The plaintiffs-appellants are to get their costs in the litigation, including the costs in this appeal from the defendants-respondents.
R.K
7. Appeal party allowed.