1. The facts of this case are shortly these. In the course of a proceeding under Chapter X of the Bengal Tenancy Act for settlement of rents and preparation of Settlement Rent Roll in accordance with the provisions of Section 104 of that. Act in respect of a Mahal called Char Khupdkar bearing Touzi .No. 1516 of the Noakhali Collectorate, plaintiffs claimed that they were occupancy raiyats in respect of all the lands described in schedule cha of the plaint. The Revenue Officer, however, held that plaintiffs were tenure-holders and only in respect of lands included in schedule ga covering an area of 1,309 bighas 9 cottas 8 chittaks, and he assessed the rent payable by the plaintiffs on the footing of their being tenants of that class by giving them an allowance of 30 per cent, on the assets. The plaintiffs being recorded as tenure holders, those holding under them were recorded as occupancy raiyats. Against these orders of the Revenue Officer passed prior to the final publication of the Record of Rights, under rules framed by the Local Government, an appeal lay to the Commissioner of the Division and the plaintiffs filed an appeal to the Commissioner of the Chittagong Division, who heard arguments but did not deliver .judgment. On the 30th of August 1909, while the appeal was still pending before the Commissioner the record was finally published. Mean-while, the Local Government framed new rules whereby the authority of the Director of Land Records was substituted for that of the Commissioner of the Division for the purpose of hearing appeals under Section 104G .and although nothing was said in the rules regarding pending appeals, the Commissioner of the Chittagong Division sent the appeal to the Director of Land Records for disposal. The parties seem to have acquiesced in the transfer of the appeal to the Director of Land Records, who heard the parties and came to the conclusion:
(i) That the plaintiffs' jote covered an area slightly in excess of 1,309 bighas 9 cottas and 8 chittaks.
(it) That the plaintiffs were tennre-holders.
(iii) That those holding under the plaintiffs were occupancy raiyats.
(iv) That the rent entered as payable to the plaintiffs by the tenants holding under them should in certain cases be raised.
(v) That 30 per cent, on the assets allowed to the plaintiffs by the Revenue Officer was a correct basis for assessing the rent payable by the plaintiffs and should stand.
2. The decision of the: Director of Land Records on points (i) and (V) involved an alteration in the record as finally published. For this and for certain other questions which arose under Regulation VII of 1822, with which we are not concerned, the Director of Land Records referred the case to the Board of Revenue under Section 104G(2) of the Bengal Tenancy Act as well as under the provisions of the said Regulation. This order of the Director of Land Records is dated the 15th of April 1910. The judgment of the Board of Revenue is dated the 2nd of May 1911, and it affirms the decision of the Director of Land Records on all the points.
3. The present suit is brought by the plaintiffs for a declaration that they are occupancy raiyats and not tenure-holders, that they are occupancy raiyats in respect of all the lands described in schedule cha of the plaint and not in respect of lands of schedule ga only, that the assessment of rent made on the basis of their being tenure-holders and the refusal of the Revenue Authorities to recognize their tenancy in respect of the remaining lands of schedule cha was illegal, that the Revenue Authorities were wrong in not fixing a time from which such rent was to take effect. The reliefs claimed by the plaintiffs are the following:
(ka) That the plaintiffs may be declared as occupancy raiyats.
(kha) That the land of schedule cha below may be declared as included in the right which the plaintiffs may be held to have.
(ga) That proper rent may be fixed of the lands in the possession of the plaintiffs and time for payment of the said rent may be fixed.
(gha) That the tenants under the plaintiffs may be held to have no right as settled raiyats or occupancy raiyats.
(una) That the tenants under the plaintiffs may be declared to be korfa tenants (under-tenants).
(cha) That a decree may be passed for costs in Court with future interest.
(chha) That a decree may be passed granting any other relief which the plaintiffs are entitled to get in the fair judgment of the Court.
4. The suit was described in the plaint as one under Section 104H and Section 111A of the Bengal Tenancy Act and Section 44 of the Specific Relief Act. The learned Subordinate Judge, without entering into the merits of the case, has dismissed the suit on the ground of limitation. He holds that the suit is one under Section 104H of the Bengal Tenancy Act and not having been brought within six months from the date of the certificate of final publication of the Record of Rights or within six months from the date of the disposal of the appeal by the Board of Revenue is barred by the special limitation provided in that section.
5. On appeal, it has been urged before us--
(a) That the plaintiffs were not aware of the date on which the Board of Revenue gave their decision and that, therefore, the date of decision should, for the purpose of limitation, be deemed to be the date on which the plaintiffs became aware of such decision and that, as a matter of fact, they came to know of it after a copy of the judgment was forwarded to the Commissioner on the 13th of October 1911.
(b) That the Commissioner of the Division was wrong in not deciding the appeal himself and its transfer to the Director of Land Records was illegal and as the Commissioner to whom the appeal lay has passed no decision on the appeal, the suit cannot be said to have been filed more than six months after such decision.
(c) That the suit is not one under Section 104H and, therefore, the special limitation provided by that section does not apply.
6 As regards the first and the second points, it appears to us that the Commissioner having transferred the appeals to the Director of Land Records and the plaintiffs, who were the appellants, having raised no objection to such transfer, but having on the other hand acquiesced in his jurisdiction by appearing and arguing the appeal before him, should not be allowed to raise the objection now. Even if plaintiffs' contention is correct, they must be held to have abandoned their appeal to the Commissioner and the suit, if it is one under Section 104H, would still be barred. The Director of Land Records delivered his judgment on the 15th of April 1910, and if he was the final appellate authority the suit filed on the 12th of April 1912 was clearly out of time.
7 Assuming, however, that the appeal to the Director of Land Records was not finally disposed of until the Board of Revenue gave their decision on the recommendations made by the Director, we still think that the date of such decision must be taken to be the 2nd of May 1911, i. e., the date which it purports to bear and that the date of plaintiffs' knowledge is wholly immaterial. Plaintiffs have not shown that there has been any error in dating the judgment and we must presume that it has been correctly dated. As regards the third point, we are of opinion that except in so far as the plaintiffs ask for proper rent to be fixed for lands regarding which their tenancy has been recognised and for a date to be fixed from which such rent is to take effect, the other reliefs claimed in the suit are outside the scope of Section 104H. That section only refers to suits by a person aggrieved by an entry of a rent settled in a Settlement Rent Roll prepared under Sections 104F to 104H or by an omission to settle such a rent. Therefore, in so far as the plaintiffs are aggrieved by the rent settled as payable by them as tenure-holders in respect of lands of schedule ga and desire to have such entry corrected, the suiti falls within the scope of Section 104H and has rightly been held to be barred by limitation. It may also appear at first sight that as regards lands as to which the plaintiffs' right as tenants has been negatived, the case is one of omission to settle a rent, but it cannot be said that so far as the plaintiffs are concerned they are aggrieved by such omission. They are aggrieved not by the omission to settle their rent, but by the omission to recognise their tenancy, We, therefore, think that the plaintiffs' claim for reliefs other than the one marked ga is not barred by limitation It is true that the declarations asked for, if granted, would afford grounds for alteration of entries as td rents but the mere fact that under the law plaintiffs cannot get such an alteration effected by means of this suit, is not enough to deprive them of the right to get these declarations which may be of value to them apart from the question of correction of the Settlement Rent Roll regarding the rent entered in it or omitted from it. These declarations are not necessarily ancillary to the prayer for settlement of a new rent.
8 We, therefore, hold that relief claimed in paragraph ga is barred under Section 104H, but that the claim for other reliefs is outside the scope of that section and to this extent the suit is one under Section. 42 of the Specific Relief Act, to which the limitation applicable is that provided by Article 120 of the First Schedule of the Limitation Act. The right to maintain such a suit under certain conditions is expressly saved by the proviso to Section 111A of the Bengal Tenancy Act. The view we take is supported by a decision of Chitty and Chatterjea. JJ., in the case of Promoda Nath Roy v. Asir ud din Mandal 11 Ind. Cas. 262 : 15 C.W.N. 896.
9 The question whether the suit is otherwise competent and is properly framed to enable the Court to grant any, of the reliefs asked for, is one which we need not consider at this stage.
10. Upon this view of the case we dismiss the suit with regard to prayer ga, but as regards the other prayers we set aside the decision of the Court below and remand the case for the trial of the other issues. Costs will abide the result.