Mitter, (Officiating) C.J.
1. This was a suit brought by the plaintiff to eject the defendant from two plots of land constituting his holding. The suit was based upon the ground that, under a contract, or according to the custom of the country, the defendant was bound to use the land of his holding for agricultural purposes only; but that the defendant, in contravention of this condition, planted trees upon the land in dispute, and converted it into a garden.
2. The plaintiff alleged that this planting of trees took place in October 1876. The suit was brought on the 19th of April 1879. The plaintiff in his plaint sought for two reliefs. He asked first for the ejectment of the defendant, and if the defendant was not liable to be ejected, he next asked in the alternative that the defendant should be compelled to remove the trees planted by him.
3. As regards one of the plots in dispute the Munsif found that the planting of the trees had taken place more than twelve years before the date of this suit. He accordingly dismissed the plaintiff's suit in so far as it related to this plot. But with reference to the other plot he found that the trees were planted on it within twelve years from the date of the suit, and that, therefore, the suit was not barred by limitation. Upon the merits the Munsif finding that the plaintiff's allegation was made out, awarded a decree in his favour.
4. Against that decree, which was partly in favour of the plaintiff and partly in favour of the defendant, both the plaintiff and the defendant appealed to the District Judge.
5. The District Judge dismissed the plaintiff's appeal and decreed that of the defendant, directing the dismissal of the whole of the plaintiff's suit, on the ground that it was barred by limitation under the provisions of Section 27 of Beng. Act VIII of 1869. he came to this conclusion, because, on the face of the plaint, the suit was brought more than one year after the alleged planting of trees.
6. Section 27 of Beng. Act VIII of 1869 only relates to such suits as could be brought either by the landlord or tenant under Act X of 1859. The claim of the plaintiff so far as it seeks to eject the defendant was a claim which was cognizable under Act X of 1859, and therefore we are of opinion that decision of the District Judge, so far as it disallows the claim of the plaintiff for ejectment of the defendant, is correct.
7. But Section 27 of Beng. Act VIII of 1869 will not apply to that part of the plaintiff's claim in which he seeks to compel the defendant to remove the trees, because a suit of that nature was not cognizable under Act X of 1859. Therefore, so far as that part of the plaintiff's claim is concerned, the decision of the lower Appellate Court is not correct.
8. Then the question arises, what article of the Limitation Act of 1877 governs this part of the plaintiff's claim?
9. It was contended on behalf of the defendant that Article 31 Schedule ii of that Act applies.
10. We are clearly of opinion that this contention is not correct, and we are supported in this opinion by the decision in the case of Kedar Nath Nag v. Sritirutno I.L.R. 6 Cal. 34. In our opinion Article 120 governs this part of the plaintiff's case; and the lower Appellate Court will have to determine whether it is barred under that article or not.
11. We, therefore, set aside the decision of the lower Appellate Court so far as it dismisses the plaintiff's claim to compel the defendant to remove the trees, and remand this case to that Court for retrial with reference to that relief, The costs will abide the result.
12. It is admitted that the appeals, numbered from 926 to 933 both inclusive, will be governed by this decision. The same order will be made in those cases also.