1. Appeal No. 702 is by the plaintiff arising out of a suit for declaration of her zamindari right in the disputed land and for khas possession of the same with mesne profits or in the alternative for ascertainment of fair and equitable rent. The plaintiff's case is that one Mon Gazi held an entire ijara under her which expired in 1318 B. S,, but he and his descendants were wrongfully holding the land in suit. They fraudulently got their right entered in the Record of Rights as raiyati right with the remark that:
the raiyati was fit for assessment but there had been no payment of rent in respect thereof.
2. It appears that the plaintiff made an application under Section 105, Ban. Ten. Act, for assessment of fair and equitable rant. That application, the plaintiff did not prosecute and it was ultimately dismissed. In this suit the principal defence of the defendants is that it is barred by the provisions of Section 109, Ban. Tea. Act. The trial Court held that it was not so barred but the learned Additional District Judge in the Court of appeal below was of opinion that Section 109 was a bar to the present suit and 119 therefore dismissed the plaintiff's suit which was decreed by the trial Court.
3. The petition made before the revenue officer under Section 105 discloses that the plaintiff accepting the position that the: defendants were raiyats under her, applied for assessment of fair and equitable rent under Section 105. The prayer was to the effect that after having found that the defendants were plaintiff's tenants, fair and equitable rant might be assessed of the land in dispute. So far as that prayer is concerned the plaintiff is barred under Section 109, from seeking the same relief in the present suit. But I am of opinion that the prayer for khas possession on declaration of plaintiff's title is unaffected by the provisions of Section 109, Ban. Ten. Act. The scope of Section 105 is for ascertainment of rent and nothing more than that and for that purpose which is solely within the jurisdiction of the revenue officer at the time of the preparation of the record, issues may be] raised on points which are enumerated in Section 105-A, clause (c) of which relates to the question whether the relationship of] landlord and tenant exists. It is argued) on behalf of the respondents that the dismissal of the application under Section 105 on that issue, would bar a suit relating to the same matter under Section 109. The issue with regard to the existence of relationship of landlord and tenant man tioned in Section 105-A, is to be determined for the purpose of settling rant under Section 105. This is apparent from the subsequent clause in Section 105-A that 'the revenue officer shall try and decide such issue and settle the rent under Section 105.' So that the revenue officer is entitled to determine the issue relating to the relationship of landlord and tenant only for the purpose of settlement of rant under Section 105, The question as to the relation-ship of landlord and tenant may also be raised under Section 106 in a suit brought under that section, Reading the two, sections together it seems to me that the issue as to relationship of landlord and tenant under Section 105-A is to be determined only for the purpose of settling fair and equitable rent and for any other purpose it has to be determined under Section 106.
4. The position therefore is that the plaintiff accepting the Record of Rights asked the revenue officer to treat the defendants as her raiyats and prayed for settlement of rent under Section 105 under which, as its opening words say, either the landlord or the tenant may apply for the settlement of rent and the revenue officer shall settle a fair and equitable rent in respect of the land held by the tenant. The section accordingly assumes that the party applying is either the landlord or the tenant on whose application the revenue officer can pro-coed to settle a fair and equitable rent. That section does not empower the revenue officer to go into the question of title and to determine as to whether the party making the application is or is not the landlord or the tenant though the relation may be in dispute between the (parties. The question as to whether the land in suit belongs to plaintiff in her zamindari right and is in the possession of the defendants as trespassers is one beyond the scope of Section 105.
5. What happened was that the plaintiff accepted the Record- of-Rights and the position that she was the landlord and the defendants were her tenants but no rent was paid in respect of the land previously. So she applied to the revenue officer for settlement of a fair and equitable rent. Subsequent to the filing of the application under Section 105 she discovered that the defendants were not her tenants and that the land exclusively belonged to her. She did not therefore pursue the application under Section 105 and allowed it to be dismissed for default. She then came to the civil Court and brought this suit for declaration of title and for recovery of khas possession.
6. The relief which she now seeks in this suit is, as I have said, beyond the scope, and not the 'subject' of the application under S- 105; it must therefore be held not barred by Section 109, Ben. Ten. Act. The learned Additional District Judge expresses himself on this point as follows:
The tenancy subsisting and the plaintiff being precluded by Section 109, Ben. Ten. Act, from showing that actually there were no such tenancies and it being not the case of the plaintiff that the said tenancies have terminated since the filing of the applications under Section 105, Ben. Ten. Act, the prayer for khas possession cannot help the plaintiff.
7. I am unable to accept this statement of law for in the first place it is assumed that the tenancy still subsists and in the second place for the reason that the prayer for khas possession could not have been the 'subject' of the application under Section 105. It is possible that in deciding an issue under Section 105 it may be necessary for the revenue officer to decide a question which does not directly arise under that section but the canvassing of such a question in a regularly constituted suit must not be taken as barred under Section 109 which says that: 'a civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made .... under Sections 105 to 108, Ben. Ten. Act.'
8. The question relating to plaintiff's title and her right to claim khas possession is not a matter which was the 'subject' of an application under Section 105. As has been held in Priyambada Debi v. Priya Nath Banerji A.I.R. 1926 Cal. 822 Section 109 is not to be interpreted in such a way as to bring within its scope any matter which though not directly the subject-matter of an application before the revenue officer under Section 105 was indirectly or impliedly involved in the determination of that application. In this view of the matter I am unable to accept the view urged by the respondents that the determination of the question of the plaintiff's right to khas possession is barred by the provisions of Section 109, Ben. Ten. Act. The alternative prayer for ascertainment of fair and equitable rent must be treated as barred.
9. The result is that this appeal is allowed and the decree of the lower Court set aside and the case sent back to that Court for determination as to whether the plaintiff is entitled to recover khas possession of the land in suit with mesne profits. Costs of this appeal will abide the result.
10. In Appeal No. 701 it appears that one of the respondents Meherulla died daring the pendency of the appeal, leaving five heirs one of whom a minor, Ahidannessa, was not substituted in his place. A preliminary objection has bean taken on behalf of the respondents to the hearing of this appeal on the ground that it is not properly constituted.
11. An application has been made before us on behalf of the plaintiff-appellant for permission to withdraw the suit with liberty to bring a fresh suit. We think that it is a proper case in which such leave should be granted having regard to the provisions of Order 23, Rule 1. We accordingly permit the plaintiff to withdraw this suit with liberty to bring a fresh suit on the same cause of action subject to the law of limitation on condition that the costs due to the respondents for the hearing at the two Courts below and the costs of hearing before us which we assess at one gold mohur, are paid by the plaintiff within one month from the date of arrival of the record in the Court below; on failure of which this appeal will stand dismissed with costs.
12. I agree.