KSHETRA LAL SINGHA ROY Vs. PROHLAD CHANDRA MAJUMDAR

JUDGEMENT

(1.) These two appeals have been preferred by the plaintiff and arise out of two suits which were tried together by consent of parties. The plaintiff, the landlord, brought a rent suit against the Mazumdars. The landlord sued for rent at the rate of Rs. 55-14-0 with cess and damages for the years 1325-to 1328. He based his claim on a decree under Section 105 passed by the Assistant Settlement Officer under Chap. X of the Bengal Tenancy Act. The other suit was filed by the tenant Mazumdars against the landlord alleging that the disputed property in respect of which the rent suit was brought was lakharaj tank and that no rent was ever paid in respect of it to the landlord. It was further alleged in the plaint in that suit that the Assistant. Settlement Officer had no jurisdiction to assess rent of tanks as they were not agricultural holdings and that consequently the decree under Section 105 is not binding on them. The Court of first instance decreed the title suit of the tenants and dismissed the rent suit of the landlord holding that it was established by evidence that the Muzumdars had been possessing these-lands for a long time without payment of rant and from other evidence it came to the conclusion that it was lakheraj and that no rent was assessable on it. An appeal was carried by the plaintiff to the Subordinate Judge who affirmed the decision of the first Court and dismissed both the appeals. The landlord has appealed in both the cases.

(2.) It has been contended before us by the learned vakil for the appellant that the title suit was not maintainable as the question which was raised in that suit formed the subject-matter of the proceeding under Section 105 of the Bengal Tenancy Act and reliance was placed on the decision of a Kull Bench of this Court reported in Becharam Choudhuri V/s. Puran Chandra Chatterji . I may mention here that the lower appellate Court rested its decision on the ground that the period for limitation for a declaratory suit was six years and that the plaintiff was entitled to bring a suit within six years (and three months under the provisions of Clause (4) of Section 111-B of the Bengal Tenancy Act. That ground has also been attacked by the learned vakil for the appellant in this Court and it is contended that the suit is barred by six years period of limitation as the plaintiff was not entitled to the deduction of three months within which it Was necessary to bring a suit under Section 105,

(3.) With regard to the last of these contentions we think that the contention is wholly untenable having regard to the express provisions of Section 111-B, Clause 4. The sub-clause of the section runs as follows: Where the making of an application or institution of a suit has been delayed owing to the operation of Sub-section (1) the period of three months therein mentioned shall be excluded in computing the period of limitation prescribed for such suit or application.