ASWINI KUMAR AICH Vs. SARADA CHARAN BASU

JUDGEMENT

(1.) In a Record of Rights under Chapter X of the Bengal Tenancy Act, the plaintiff was recorded as the owner of 2/3rds of a howla and the defendant of the remaining 1/3rd. The plaintiff brought a suit under Section 106 of the Bengal Tenancy Act for a decision that the entry was not correct, That case was heard and remained pending for delivery of judgment. In this state of things, the plaintiff made an application to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. The order on the application was: "The plaintiff is allowed to withdraw." No order was made that he was permitted to bring a fresh suit on the same cause of action.

(2.) The plaintiff then brought this suit in the Civil Court and his prayers are, first, that his title to the 5 of the howla recorded in the name of the defendant be established; secondly, that his title by adverse possession to the same be established; thirdly, for recovery of possession of the same, if necessary; end fourthly, for any other relief that he may be entitled to.

(3.) Among other issues, issue No. 3 framed by the learned Munsif was---"Is Chapter X of the Bengal Tenancy Act a bar to the maintainability of the present suit?" At the hearing, this issue was not pressed. In his judgment, he says: issue No. 3 was not pressed at the Bar" and he decreed the plaintiff s suit.