Richard Garth, C.J.
1. The plaintiff, as one of the sons of Sona Mondul, a deceased Mahomedan, sued for possession of a 4-anna share in a certain jote, on the allegation of dispossession therefrom by the defendant (landlord) in Assar 1279 (June 1872). The defendant pleaded that the plaintiff and his brothers, not being able to hold on the jote by paying its rent, relinquished the same in Joisto 1279 (May 1872), and fled away to a different village.
2. Both Courts have found that the plaintiff and his brothers were forcibly turned out from the lands by the defendant's predecessors, and have consequently decreed the plaintiff's claim; the lower Appellate Court holding that one year's limitation under Section 27 of the Rent Law did not apply to the suit.
3. It has been argued here that the lower Appellate Court was wrong on this question of limitation; and we think the contention is well founded. The plaintiff's suit, both in form and substance, was to recover possession of his jote, having been forcibly dispossessed by the defendant.
4. The defendant's answer was that he did not dispossess the plaintiff, but that he voluntarily relinquished his holding. No question of title was raised in the case; and it was not denied that at the time of the dispossession or relinquishment, as the case might be, the plaintiff held the jote which he claims.
5. Under these circumstances it seems to us that this is a suit for possession within the meaning of Section 27 of the Rent Law, and that the plaintiff cannot make it other than a suit for possession by inserting in his plaint that he desires to have his right established. If this were enough to take the case out of the operation of the section, a plaintiff might always get rid of the one year's limitation by inserting a claim of right in his plaint.
6. A case, decided by Mitter, J., was referred to Mussamut Dhurjobutty Chowdhrain v. Chamroo Mundul 25 W.R. 217 in which that learned Judge appears to have held, under circumstances somewhat resembling the present, that the case did not come within Section 27 of the Rent Law, because the suit was brought to establish the plaintiff's title. The case is not very fully reported, and is very probable that it did involve some claim of title. It was upon that ground entirely that the decision proceeded, and it is, therefore, distinguishable from this case, because here we consider that no claim of title was involved.
7. The judgments of the lower Courts will, therefore, be reversed, and the plaintiff's claim will be dismissed.