1. This appeal arises out of a suit brought for assessmentof rent on a certain tenure which is spoken, of as a nim howla. The Court offirst appeal dismissed the suit on two grounds, namely, that the suit wasbarred by reason of the provisions of Section 109 of the Bengal Tenancy Act,and, secondly, that it was barred by the rule of limitation to be found inArticle 130 of the Schedule to the Indian Limitation Act.

2. It appears that in respect of the area within which thisnim howla lies a Record of Rights was prepared under the provisions of ChapterX of the Bengal Tenancy Act and was finally published on the 18th May 1906. Inthat Record of Rights this tenure was entered as one in respect of which at themoment no rent was paid but as one liable to pay rent. Thereupon the plaintiffsNos. 1 and 2, who are co-sharer landlords of the howla, brought a suit underthe provisions of Section 106 of the Act. In that suit they prayed to have itdeclared that the entry in the Record of Rights was incorrect and that as amatter of fact the rent annually payable in respect of the nim howla was a sumof 13 Rupees odd. That suit was dismissed, and dismissed in effect on theground that the other co-sharer landlords were not made parties thereto. TheSubordinate Judge has held that the institution of that suit by reason ofSection 109 bars the entertainment of the present suit in the Civil Courts, Weare unable to agree with him in this opinion, as it seems to us that the subject-matterof the suit under Section 106 and the subject-matter of the present suit areentirely different. The first suit was brought in order to have it declaredthat the rent annually-payable was a certain seta. That suit having failed, theplaintiffs bring their present suit in order that fair rent should be assessedupon the holding. That is a matter different from the subject matter of thepresent suit.

3. Reference has next been made to an application which wasmade under Section 105 for assessment of fair rent on this nim howla. Thatapplication, it appears, was withdrawn, We are of opinion that that also doesnot bar the present suit, as we think, agreeing with the view taken in the casereported as Chiodith v. Tulsi Singh 18 Ind. Cas. 130 [LQ/CalHC/1912/566] : 40 C. 428 : 17 C.W.N.467, that an application made but withdrawn is to be treated as one never made.

4. The next question is, whether the suit is barred bylimitation. In the Court of first instance that issue was raised, but at thetrial it was abandoned. The mere nonpayment of rent for a certain period doesnot bar the landlords right to have the rent assessed and to recover rent fromhis tenant. We are of opinion that unless and until this tenure is found to bea rent-free tenure, Article 130 of the Limitation Act can have no application.

5. Having taken the view he did on these two points, theSubordinate Judge did not enter into the merits of the case. Differing from himon the issue in bar, we set aside his decree and remand the appeal to him inorder that if may now be tried and disposed of on the merits. Costs of thisappeal will be costs in the case.

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Kamini Sundari Chowdhurani and Ors. vs. Abdul Halim Moulavi and Ors. (09.05.1918 - CALHC)