1. These two appeals have been preferred by the plaintiff and arise out of two suits which were tried together by consent of parties. The plaintiff, the landlord, brought a rent suit against the Mazumdars. The landlord sued for rent at the rate of Rs. 55-14-0 with cess and damages for the years 1325-to 1328. He based his claim on a decree under Section 105 passed by the Assistant Settlement Officer under Chap. X of the Bengal Tenancy Act. The other suit was filed by the tenant Mazumdars against the landlord alleging that the disputed property in respect of which the rent suit was brought was lakharaj tank and that no rent was ever paid in respect of it to the landlord. It was further alleged in the plaint in that suit that the Assistant. Settlement Officer had no jurisdiction to assess rent of tanks as they were not agricultural holdings and that consequently the decree under Section 105 is not binding on them. The Court of first instance decreed the title suit of the tenants and dismissed the rent suit of the landlord holding that it was established by evidence that the Muzumdars had been possessing these-lands for a long time without payment of rant and from other evidence it came to the conclusion that it was lakheraj and that no rent was assessable on it. An appeal was carried by the plaintiff to the Subordinate Judge who affirmed the decision of the first Court and dismissed both the appeals. The landlord has appealed in both the cases.
2. It has been contended before us by the learned vakil for the appellant that the title suit was not maintainable as the question which was raised in that suit formed the subject-matter of the proceeding under Section 105 of the Bengal Tenancy Act and reliance was placed on the decision of a Kull Bench of this Court reported in Becharam Choudhuri v. Puran Chandra Chatterji : AIR1925Cal845 . I may mention here that the lower appellate Court rested its decision on the ground that the period for limitation for a declaratory suit was six years and that the plaintiff was entitled to bring a suit within six years (and three months under the provisions of Clause (4) of Section 111-B of the Bengal Tenancy Act. That ground has also been attacked by the learned vakil for the appellant in this Court and it is contended that the suit is barred by six years' period of limitation as the plaintiff was not entitled to the deduction of three months within which it Was necessary to bring a suit under Section 105,
3. With regard to the last of these contentions we think that the contention is wholly untenable having regard to the express provisions of Section 111-B, Clause 4. The sub-clause of the section runs as follows:
Where the making of an application or institution of a suit has been delayed owing to the operation of Sub-section (1) the period of three months therein mentioned shall be excluded in computing the period of limitation prescribed for such suit or application.
4. It was not open to the tenant to bring a suit within the three months. Consequently the period must be excluded in computing limitation. This ground of appeal, therefore, fails.
5. With regard to the other ground as to the bar raised by the proceedings under Section 105 it is found by the lower appellate (Court that in the proceedings for settlement of fair and equitable rent in the disputed tank the plaintiff did not appear. The proceeding was an ex-parte one. No issue as to whether the land was or was not liable to pay rent was raised by the Revenue Officer, On this ground the lower appellate Court held that the proceedings under Section 105 did not operate as a bar to the maintainability of the tenants suit. As we have already stated the first Court, in holding that proceedings under Section 105 did not operate as bar to the tenants' suit for declaration rested its decision on the ground that the Assistant Settlement Officer had no jurisdiction. It is not necessary to go into that question, for it seems to us that it cannot be said in this case that the question whether the land was mal or lakheraj was raised at any stage of the proceedings under Section 105. It is true that the landlord came to Court on the basis of the finally published Record of Rights. As there was no appearance on behalf of the tenants the question whether the land was rent-paying or lakheraj land could not be agitated and could not form the subject-matter of the proceedings under Section 105. The Section 105 proceedings were based on the assumption that the land was rent paying. This ground of appeal also fails.
6. The result is that both the appeals are dismissed with costs.
7. I agree.