1. In a Record of Rights under Chapter X of the Bengal Tenancy Act, the plaintiff was recorded as the owner of 2/3rds of a howla and the defendant of the remaining 1/3rd. The plaintiff brought a suit under Section 106 of the Bengal Tenancy Act for a decision that the entry was not correct, That case was heard and remained pending for delivery of judgment. In this state of things, the plaintiff made an application to withdraw from the suit with liberty to bring a fresh suit on the same cause of action. The order on the application was: 'The plaintiff is allowed to withdraw.' No order was made that he was permitted to bring a fresh suit on the same cause of action.
2. The plaintiff then brought this suit in the Civil Court and his prayers are, first, that his title to the 5 of the howla recorded in the name of the defendant be established; secondly, that his title by adverse possession to the same be established; thirdly, for recovery of possession of the same, if necessary; end fourthly, for any other relief that he may be entitled to.
3. Among other issues, issue No. 3 framed by the learned Munsif was---'Is Chapter X of the Bengal Tenancy Act a bar to the maintainability of the present suit?' At the hearing, this issue was not pressed. In his judgment, he says: issue No. 3 was not pressed at the Bar' and he decreed the plaintiff's suit.
4. The defendant appealed and in his grounds of appeal he did not even mention that any provision of Chapter X of the Bengal Tenancy Act was a bar to the suit. The learned Judge, however, at the hearing took up the issue in bar under Chapter X and held that the suit was barred under Order XXIII, Rule 1, Sub-rule 20 Ind. Cas. 1; 18 C.W.N. 604 at p. 605; 18 C. L.J. 128, of the Civil Procedure Code, because the plaintiff had not obtained the permission of the Court to bring a fresh suit on the same cause of action.
5. We are clearly of opinion that the learned Judge is wrong in his conception of the law on this point. Order XXIII, Rule 1, Sub-rule 20 Ind. Cas. 1; 18 C.W.N. 604 at p. 605; 18 C. L.J. 128, in the absence of permission to bring a fresh suit, precludes the plaintiff from instituting any fresh suit in respect of such subject-matter or such part of the claim from which he has withdrawn. Now, the subject-matter of the petition under Section 106 was the correction of the Record of Rights; the subject-matter of the suit in the Civil Court, however, is not the same. The plaintiff does not even make any prayer of this kind. The prayer is for declaration of title and for recovery of possession. These matters are entirely foreign to the jurisdiction of the Revenue Officer under Section 106, his work being confined to a decision of the point whether the entry in the Record of Rights is correct or not. Supposing he holds that the entry is correct, that does not preclude the plaintiff from bringing a suit in the Civil Court to have his title declared and possession restored. The bar under Section 100 of the Bengal Tenancy Act is a bar only in respect of matters which are legally the subject-matter of the investigation made under the chapter and of decisions thereunder.
6. In this case, the subject-matters of the two proceedings, that is, of the proceedings under Section 106 and of this suit, are entirely different and whether the suit under Section 106 was disposed of in one way or another, the present suit is not barred.
7. In this view of the case, we set aside the judgment and decree of the lower Appellate Court and send back the case for decision on the merits.
8. Costs will abide the result.
9. The appellant will be entitled to a refund of the Court-fee on the memorandum of appeal to this Court.