1. This appeal arises out of suit No. 134 brought by theplaintiff for a declaration that the lands in dispute form part of theirnimhowla Asaruddi within howla Haris Chandra, situated in the patni of thedefendants 8 and 9, and for recovery of possession of the said lands. Theplaintiffs alleged that they let out the lands for one year to a subtenant in1321, but the defendants having obstructed them in taking possession hesurrendered the lands to the plaintiffs. The main defence was that the landswere not included in the plaintiffs nim-howla but were the khas lands of thepatnidar, that the suit was barred by the provisions of S. 109 of the BengalTenancy Act, and was also barred by limitation. The Courts below have concurredin decreeing the suit.

2. The first contention raised on behalf of the appellant isthat the suit is barred by the provisions of S. 109 of the Bengal Tenancy Act.It appears that the plaintiffs brought a suit under S. 106 of the BengalTenancy Act, but withdrew from the suit with liberty to bring a fresh suit. Itis urged that S. 109 bars a suit even if the previous suit was withdrawn, andreliance is placed upon the case of Abeda Khatan v. Majubali : A.I.R. 1921 Cal. 455 [LQ/CalHC/1920/218] = 48 Cal. 157. S. 109 of the Bengal Tenancy Act laysdown that subject to the provisions of S. 190 A, a civil Court shall notentertain, any application or suit concerning any matter which is or hasalready been the subject of an application made, suit instituted or proceedingstaken under Ss. 105 to 108 both inclusive. But where a suit is withdrawn withliberty to bring a fresh suit we think it must be regarded as hiving beennonexistent.

3. A similar view was taken in Cheodditti v. Tulsi Singh(1912) 40 Cal. 428 = 18 I.C. 130 = 17 C.W.N. 467, where an application under S.105 was withdrawn without liberty to bring a fresh suit. The learned Judges(Chitty and Teunon, JJ.) held that an application under S. 105 cannot beregarded as a suit and that therefore although an application was withdrawnwithout liberty to bring a fresh application, a suit for enhancement of rent isnot barred by the provisions of S. 109. In Kamini Sundari v. Abdul (1918) 23C.L.J. 254 = 47 I.C. 420, Teunon and Richardson, JJ. following the above caseheld that an application (under S. 105) made, but withdrawn, is to be treatedas one never made. In the case of Abeda Khatun v. Majubali :A.I.R. 1921 Cal. 455 [LQ/CalHC/1920/218] = 48 Cal. 157 [LQ/CalHC/1920/218] , however, there, is an observation ofMookerjee, A.C.J and Fletcher, J. that an application which has been madewhether it is withdrawn or whether it is dismissed for non-prosecution isnevertheless an application made within the meaning of S. 109. But in that casethe application under S. 105 was dismissed for non-prosecution.

4. Where an application or a suit has been dismissed whetherupon the merits or for non prosecution, it comes within the words "hasbeen the subject-matter" of the application or the suit, and the applicantcannot avoid the consequences merely by not prosecuting the application orsuit. Where however, as in the present case, a plaintiff in a suit under S. 105has been permitted to withdraw from the suit with liberty to bring a freshsuit, we think it should be treated as one not having been brought. Theapplication under S. 105 in the cases of Cheodditti v. Tulsi Singh (1912) 40Cal. 428 = 18 I.C. 130 = 17 C.W.N. 467, and Srimati Kamini Sundari v. AbdulHabin (1918) 23 C.L.J. 254 = 47 I.C. 420, was withdrawn without liberty to makea fresh application and the observations of the learned Judges in the case ofAbeda Khatun v. Majubai : A.I.R. 1921 Cal. 455 [LQ/CalHC/1920/218] = 48 Cal. 157 [LQ/CalHC/1920/218] ,as to the effect of withdrawal of an application, must be taken to apply to acase where the application is withdrawn without liberty to make a freshapplication.

5. It is contended that the revenue officer had no power togive liberty to bring a fresh suit in the Civil Court. But it is unnecessary todecide that question, because, assuming that he had no power to do so, he couldallow the suit to be withdrawn with liberty to bring a fresh suit in his ownCourt, and the effect of such an order must be taken to be, (as we have saidabove) as if the suit had never been brought. We are accordingly of opinionthat the suit is not barred by the provisions of S. 109 of the Bengal TenancyAct.

6. No question of limitation arises in this case as the suitis for recovery of possession on declaration of title, and the suit is broughtwithin 12 years of the dispossession.

7. The next contention is that the Court below in arrivingat the conclusion that plaintiffs have proved their title and possession, hasrelied upon certain documents (Exs. 3 to 6) which are inadmissible, inevidence. These documents were executed between strangers to the suit, and thelands in dispute were referred to in the boundaries of lands dealt with inthose documents.

8. It is contended on behalf of the respondent that thedocuments objected to, were used in Suit No. 1882 out of which Appeal No. 1341arises and not in this case, the documents which have been used in this casebeing Exs. 15 F, and 21 to which no exception can be taken. It appears howeverthat the evidence relating to both the suits as considered together and theCourt below in more than one place refers to the recital of nim howla Assaruddiand Howla Haris Chandra in the boundaries of the documents, Exs. 3 to 6. Thatbeing so, it is difficult to say that they were not used in evidence indeciding this case.

9. In the case of Dwarka Nath v. Mukundu Lal (1906) 5 C.L.J.55, it was held that documents though not inter partes containing recitals thata particular land belongs to a particular tenure which is in question, areadmissible in evidence under either S. 11 (6) or S. 13 of the Evidence Act;although they are not conclusive or binding evidence and may be very weakevidence or even of no weight at all. A contrary view was however taken inAbdul Ali v. Syed Rejan (1913) 19 C.W.N. 468 = 21 I.C. 618.

10. The question, whether recitals in boundaries of otherlands in documents between third parties (such as there are in the presentcase) are admissible in evidence under S. 11 or S. 13 of the Evidence Act wasconsidered in the case of Abdullah v. Kunj Behary Lal (1911) 14 C.L.J. 467 = 12I.C. 149 = 16 C.W.N. 252, and was answered in the negative. The question is notfree from doubt, but having regard to the recent decisions on the point, webold that Exs. 3 to 6 are not admissible in evidence.

11. There is, no doubt, considerable other evidence, bothoral and documentary, in support of the finding of the Court below, but insecond appeal we cannot uphold the finding upon the other evidence afterexcluding the evidence which is inadmissible. We are accordingly constrained tosend the case back to the lower Appellate Court for a finding upon the otherevidence upon the record.

12. Second Appeal No. 1341 arises out of Suit No. 1882. Inthis case no question, arises whether the suit is barred by S. 109, BengalTenancy Act, as there was no previous suit under S. 106. But the question oflimitation has been urged in this case.

13. It appears that the record-of-rights was published inFebruary, 1907 and the suit was instituted on the 15th December 1914, i.e.,more than 6 years after the publication of the record-of-rights. But theplaintiffs do not pray for correction of any entry in the record-of-rights. Itis contended that a suit for declaration of title is governed by Art. 120 ofthe Limitation Act, and the cases of Mahabharat Shaka v. Abdul Hamid Khan(1904) 1 C.L.J. 73, and Shyamananad v. Raj Narain. (1906) 4 C.L.J. 568 = 11C.W.N. 186 are relied upon. There is also a prayer for confirmation ofpossession. It is unnecessary to consider whether a suit for confirmation ofpossession is governed by Art, 120 because assuming that Art. 120, applies, theplaintiffs stated that their cause of action arose when the defendantsattempted to disturb the possession of the plaintiffs.

14. The attempt at dispossession was made in 1914 (i.e.,within 6 years of the suit) and the plaintiffs case on the point has evidentlybeen accepted by the Courts below. It is true that the entry in the record ofrights was made more than 6 years before the suit, but the entry merely raiseda presumption of correctness against the plaintiffs and they had to prove byevidence that it was incorrect.

15. We are accordingly of opinion that the suit is notbarred by limitation. The question of admissibility of Exs. 3 to 6 in evidencearises in this case. We have already dealt with the question in Appeal No.1380, and our decision on the point will govern this case also. The learnedpleader for the respondent pointed out that two of the documents viz. Exs. 3and 4 were not executed by third parties, the executant being a co-owner of thenim howla under which the plaintiffs claim the raiyati jote and was thereforeinterested in the land, The Court below will consider the point in this case,as also in suit No. 13+, if it applies to that suit.

16. Objection is also taken to the admissibility of Exs. 1and 2. It is found however that the original records are destroyed, and thecopies were admitted as secondary evidence. We do not think therefore thatthere is anything in that objection.

17. The last contention is that there is no specific findingwhether the land in dispute is included in the raiyati jote claimed by theplaintiff.

18. The Court of appeal below has come to the finding thatthe lands in suit "were within the howlas as stated above," and in anearlier part of the judgment it refers to "the howlas, nim howlas andraiyati as set up by the plaintiffs." It seems therefore that by the words"within the Howlas as stated above," the Court below meant to findthat the lands were included within the raiyati jote set up by the plaintiffsbut it might have been made clearer, because the raiyati jote and the howla arenot coextensive, and as the case is going back, the Court below will come to aclear finding upon the point whether the lands are included within the raiyatijote set up by the plaintiffs. So far as the case is concerned (No. 1380), wethink the finding that the lands are included in the howla is sufficient,because no raiyati jote was claimed, in that case.

19. The result is that both the cases must go back to theappellate Court for a fresh decision upon the evidence on the record other thanthe documents; which are inadmissible in evidence, having regard to theobservations made above.

20. Costs to abide the result.

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S.K. Acharji Chowdhury and Ors. vs. Umed Ali Howaladar andOrs. (07.07.1921 - CALHC)