1. This appeal arises out of a suit brought for assessment of rent on a certain tenure which is spoken, of as a nim howla. The Court of first appeal dismissed the suit on two grounds, namely, that the suit was barred by reason of the provisions of Section 109 of the Bengal Tenancy Act, and, secondly, that it was barred by the rule of limitation to be found in Article 130 of the Schedule to the Indian Limitation Act.
2. It appears that in respect of the area1 within which this nim howla lies a Record of Rights was prepared under the provisions of Chapter X of the Bengal Tenancy Act and was finally published on the 18th May 1906. In that Record of Rights this tenure was entered as one in respect of which at the moment no rent was paid but as one liable to pay rent. Thereupon the plaintiffs Nos. 1 and 2, who are co-sharer landlords of the howla, brought a suit under the provisions of Section 106 of the Act. In that suit they prayed to have it declared that the entry in the Record of Rights was incorrect and that as a matter of fact the rent annually payable in respect of the nim howla was a sum of 13 Rupees odd. That suit was dismissed, and dismissed in effect on the ground that the other co-sharer landlords were not made parties thereto. The Subordinate Judge has held that the institution of that suit by reason of Section 109 bars the entertainment of the present suit in the Civil Courts, We are unable to agree with him in this opinion, as it seems to us that the subject-matter of the suit under Section 106 and the subject-matter of the present suit are entirely different. The first suit was brought in order to have it declared that the rent annually-payable was a certain seta. That suit having failed, the plaintiffs bring their present suit in order that fair rent should be assessed upon the holding. That is a matter different from the subject matter of the present suit.
3. Reference has next been made to an application which was made under Section 105 for assessment of fair rent on this nim howla. That application, it appears, was withdrawn, We are of opinion that that also does not bar the present suit, as we think, agreeing with the view taken in the ease reported as Chiodith v. Tulsi Singh 18 Ind. Cas. 130 : 40 C. 428 : 17 C.W.N. 467, that an application made but withdrawn is to be treated as one never made.
4. The next question is, whether the suit is barred by limitation. In the Court of first instance that issue was raised, but at the trial it was abandoned. The mere nonpayment of rent for a certain period does not bar the landlord's right to have the rent assessed and to recover rent from his tenant. We are of opinion that unless and until this tenure is found to be a rent-free tenure, Article 130 of the Limitation Act can have no application.
5. Having taken the view he did on these two points, the Subordinate Judge did not enter into the merits of the case. Differing from him on the issue in bar, we set aside his decree and remand the appeal to him in order that if may now be tried and disposed of on the merits. Costs of this appeal will be costs in the case.