BROJO MOHAN PAL Vs. DARSAN PAL

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession on declaration of title. The plaintiff's case was that he purchased the lands in suit from defendant 3 in August 1906, that in the kobala under which he purchased there was no mention of there having been any tenants on the land, that in the Settlement Record of the Khas Mehal finally published in 1910 the plaintiff was recorded as occupancy ryot in respect of the land, that subsequently in the Record-of-Rights finally published in 1918, the lands were recorded in the names of defendants 1 and 2 under defendant 3. The plaintiff alleged that he had instituted a suit under Section 106, Ben. Ten. Act, for correction of the entry in the Record-of-Rights but withdrew from the suit with liberty to bring a fresh suit. He averred that he was dispossessed by the defendants in July 1922. The prayer for declaration of title was based on the purchase as also on adverse possession for the statutory period. There was a prayer for recovery of possession, and it was further prayed that if it be found that defendant 3 had maliki right, the plaintiff might be given a decree for possession on declaration of his jote right to the land.

(2.) It is unnecessary to set out the defence because the only plea on which the suit has been dismissed is that Section 109, Ben., Ten. Act, operates as a bar to the maintainability of the suit.

(3.) In support of the contention that the present suit is not barred by reason of the provisions contained in Section 109, Ben. Ten. Act, a number of decisions has been drawn to our notice, many of which deal with the question whether a previous application under Section 105, Ben. Ten. Act, did or did not bar a subsequent suit. We do not propose to deal with those decisions because we are of opinion that in the present case we have really to consider only two questions : first: What, in fact, was the scope of the suit under Section 106, Ben. Ten. Act, as framed ; and second ; How much of that suit was triable by the Revenue Officer acting under the provisions of that section. Section 109, Ben Ten Act, would operate as a bar only to the extent that the suit as laid under Section 106 fell within the purview of the Revenue Officer's functions under that section. Having examined the plaint in. the suit under Section 106 we find that it asked for correction of the entry in the Record-of-Rights by inserting the name as niskardar in respect of the lands, on a declaration that the plaintiff's title by purchase from defendant 3 had been established, and also a correction of the said entry by expunging the names of defendants 1, 2 and 3 on a declaration that they had no right to or possession in the lands. It has been urged before us on behalf of the appellant that the prayer for possession, which there is in the present suit, was not and could not be included in the suit under Section 106. This contention cannot be refuted : see, e.g, Pran Krishna V/s. Trailakhyanath [1915] 19 C.W.N. 911, Kali Sundari V/s. Girija Sankar [1911] 15 C.W.N. 974. But then it. will not be possible to give him any relief in respect of this prayer unless he obtains a declaration of his title to the lands. It has been urged on behalf of the appellants that the Revenue Officer could not have gone into the question of his title as against defendant 3. In support of this contention reliance has been placed upon several oases which will now be noticed. The first case relied upon is that of Padmanav Ramanuja Das V/s. Lukmi Rani [1908] 12 C.W.N. 8. In this case there is no doubt a passage in the judgment of Woodroffe, J., which would seem to indicate that the question of possession alone should be considered in a suit under Section 106; but Coxe, J., observed that it is evident that in proceedings under the Bengal Tenancy Act no disputes of title between rival proprietors, considered merely as proprietors can legitimately arise, (p. 13), and again, that suits under Section 06 are suits between tenant and tenant or between landlord and tenant in which questions other than that of possession may legitimately arise (p. 15).