1. The suit, in sO far as the prayer kha is concerned, is barred by the provisions of Section 104H of the Bengal Tenancy Act, inasmuch as it relates to an entry of rent settled under Sections 104A to 104F. But the plaintiff applied for amendment of the plaint in the court of first instance by striking out the prayer kha. The plaintiff also wanted to strike out the prayer for a declaration that the record in the names of defendants Nos. 2 to 5 in respect of the land of Schedule (kha) was unjust and illegal. If these amendments were allowed, the only prayer left would be a declaration that the defendants Nos, 2 to 5 had no right to the land and that the land was included in the plaintiff's ryati: that would be a suit within the purview of Section 111A and we do not see why the plaintiff should not be allowed to proceed with the suit so framed. In the case Rajani Kanta Mookerjee v. Secretary of State for India 47 Ind. Cas. 820 : 45 C. 645. 651 it was held that the plaintiff is entitled to maintain a suit coming under Section 111 A although the claim under Section 104H may be barred by limitation.
2. In the present case, the plaintiff expressly prayed for the amendments as stated above. We think that the reasons given by the Court below for refusing the amendment are not sound, and that the amendments may be allowed.
3. The Secretary of State will not be a necessary party to the suit so amended. But the plaintiff wants that the question of title as between the plaintiff and defendants Nos. 2 to 5 should be decided in the presence of the Secretary of State who may be kept on the record as a pro forma defendant.
4. We accordingly direct that the case be remitted to the Court of first instance in order that the amendments may be made and the suit tried according to law. The Secretary of State will be kept on the record as a pro forma defendant.
5. The plaintiff must pay full costs of the Secretary of State in the Court of first instance and half the costs in the lower Appellate Court, as only one half of the costs was allowed in that Court to the Secretary of State. The order as to costs in favour of the other defendants both in the Court of first instance and in the lower Appellate Court will be set aside. No order as to costs in this Court.
6. This judgment will govern the other appeals Nos. 915 to 927 of 1919.