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 the defendant No. 3 in August. 1906, that in the kabala under which he purchased there was no mention of there having been any tenarits on the land, that in the Settlement Record of the khas mehal finally published in 1910 the plaintiff was recorded as occupancy raiyat in respect of the land, that subsequently in the Record of Rights finally published in 1918, the lands were recorded in the names of the defendants Nos. 1 and 2 under the defendant No. 3. The plaintiff alleged that he had instituted a suit u/s 106 of the Bengal Tenancy 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 No. 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, Bengal Tenancy 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 of the Bengal Tenancy Act a number of decisions has been drawn to our notice many of which deal with the question whether a previous application u/s 105 of the Bengal Tenancy 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 u/s 106, Bengal Tenancy 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 of the Bengal Tenancy Act would operate as a bar only to the extent that the suit laid u/s 106, fell within the purview of the Revenue Officer''s functions under that section. Having examined the plaint in the suit u/s 106 we find that it asked for correction of the entry in the Record of Rights by inserting the name as niskar-dar in respect of the lands on a declaration that the plaintiff''s title by purchase from the defendant No. 3 had been established and also a correction of the said entry by expunging the names of the defendants Nos. 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 u/s 106. This contention cannot be refuted. [See e g. Pran Krishna Saha v. Trailakya Nath Chowdhuri 27 Ind. Cas. 883 : 19 C.W.N. 911, Kali Sunderi Debya v. Girija Sankar Sanyal 11 Ind. Cas. 184 : 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 the defendant No. 3. In support of this contention reliance has been placed upon several cases which will now be noticed. The first case relied upon is that of Padmalav v. Lukmi Rani 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 u/s 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 (page 13 pages of 12 C.W.N.--[ed.]) and again, that suits u/s 106 are "suits between tenant and tenant, or between landlord and tenant in which questions other than that of possession may legitimately arise (page 15 pages of 12 C.W.N.--[ed.]) The observations of Woodroffe, J., therefore, should be taken as limited to'' the peculiar facts of the case itself namely that the dispute concerned two rival proprietors without any question arising as between any of them and the tenants The case of Ram Chandra v. Nanda Nandanananda Deb 20 Ind.cas. 298 : 19 C.L.J. 197 : 19 C.W.N. 938 in which Padmalav''s case 12 C.W.N. 8 was referred to does not really help the appellant because there the question of possession had not at all been investigated and while remanding the case for an investigation of that question, it was observed that the Bengal Tenancy Act deals with relations of landlord and tenants and it is not part of its purpose to regulate disputes between rival proprietors, except in so far as such disputes affects their relations with their tenants and the view of Coxe, J. in Padmalav''s case 12 C.W.N. 8 was adopted and affirmed by the learned Judges. The view of Coxe, J., in Padmalav''s case 12 C.W.N. 8 was agreed in by Carnduff, J. in Ensar Ali v. Yakub Ali 13 Ind. Cas. 311. That such a dispute does not fall within the purview of Section 108 has also been held in a recent decision of this Court, namely, in
4. At the same time we think that the present suit should not be thrown out altogether. The plaintiff''s title in so far as it is based upon his allegation of adverse possession for the statutory period was not, in fact, within the scope of the plaint in the suit u/s 106 of the Bengal Tenancy Act. Ha is fully competent to agitate this part of his title in the present suit and get in it such reliefs, if any, against the defendants as the law may entitle him to.
5. We accordingly allow the appeal and setting aside the decisions of the Court below remand the suit in the limited form indicated above to the trial Court for trial. All costs incurred up till now (including the costs in this appeal) will be costs in the cause.
