1. This is an appeal by the second defendant against a decision of the Third Subordinate Judge of Midnapore confirming a decision of the Munsif. The suit was brought by the plaintiff for a decree for possession of the land upon a declaration being made that he is entitled to get an annual rental of Rs 20 15 from defendant No. 2 upon a finding and a declaration that the plaintiff No. 1 is tenant under the defendant No. 1 in respect of the land under claim and the second prayer involved a decree against the first defendant who is not an appellant before us.
2. The First Court decreed the suit in part declaring the plaintiff's title to the ha land in suit, declaring him to be a tenant under defendant No. 1, and declaring defendant No. 'I to be a tenant on the land at a yearly rent of Rs. 20-15 under plaintiff No, 1, and the decree provided that plaintiff No. 1 was to get possession of the plaint land through the defendant No. 2 and that he should be entitled to realise rent at the rate mentioned above. The lower Appellate Court dismissed the appeal. There is evidently a mistake in the judgment of the Subordinate Judge when he says, ' the cross-objection is decreed without costs; ' for the cross-objection was clearly rejected by him as appears from page 27 of the paper-book. It appears that some years ago the plaintiff sued defendant No. 2 for rent in a rent suit and defendant No. 2 in that suit put forward the defence that ha held the land not under the plaintiff but under defendant No. 1. It appears that de-fendant No. 2 was on the land holding under defendant No. 1, but the plaintiff claims that he took a settlement from defend ant No. 1 of the land, and consequently from sash settlement the defendant No 2 was bound to pay the rent to him which he had previously paid to the first defendant It appears that certainly one, if not two, decrees for rent had been obtained by the plaintiff against the second defendant before the rent suit now under consideration was brought At page 20 of the paper-book we find it stated, that after the close of the litigation with one Dhananjoy, the plaintiff sued defendant No 2 for rent of this particular land and obtained a decree at the admitted rate of rent in 1906. However, in spite of this the rent suit was decided against the plaintiff the Trial Court dismissing the suit on the 17th April 1913, an appeal was preferred by the plaintiff against the decision of the Trial Court which was dismissed on the 4th December 1914. This suit was commenced on the 8th July 1916 and two points are urged before us on behalf of the appellant. First of all, he says that the claim is barred by limitation and that the special period of limitation provided by Schedule III Art 3 of the Bengal Tenancy Act applies, that is to say, the two years' rule of limitation and he urges that the time began to run not from the decision of the anneal on the 4th December 1914, but from the decison of the First Court on the 17th April 1913 and, consequently, he contends that inasmuch as the present suit was commenced on the 8th July 1916, it is barred by limitation on the assumption that the special period of limitation provided by the Bengal Tenancy Act applies. Secondly, it is said that between the second defendant and the plaintiff the rent suit operates as res judicata, so far as the claim against the second defendant is concerned. What is said is this, that having regard to the fact that the 2nd defendant was not settled on the land by the plaintiff but had previously been on the land, it was necessary for the Court to go into the question of the title of the plaintiff which the plaintiff claimed to derive from the defendant No. 1 and, consequently, it is said that although the judgment in the rent suit may not operate as res judicata as far as the defendant No. 1 is concerned as he was not a party to the rent suit, yet as regards defendant No. 2, be the question of title was gone into, the matter is res judicata as between him, the second defendant and the plaintiff. So far as the first point is concerned, we do not think that, this (in spite of the argument addressed to us) can be deemed to be a suit to which the provisions of Schedule III, Art, 3 of the Bengal Tenancy Act apply, that is to say, it is not a suit to recover possession of land claimed by the plaintiff within the meaning of Art. 3 : shortly stated it is not a suit as between landlord and tenant be as to bring it within the provisions of that Article. The result is that the point raised with regard to limitation does not arise. The appellant is, we think, perfecty correct in saying that if Art. 3, Schedule III, applies, time will begin to run from the decision of the First Court. Bat of course, this is merely a matter of academic interest if, as we hold, Art. 3, Schedule III has no application and the general law of limitation applies.
3. So far as the question of res judicata is concerned it seems to us that this argument is concluded by the decision in the case of Dwarkanath Roy v. Ram Chand Aich (3) and we think that this decision direatly covers the present case, and in so saying we are not unmindful of the reasons whereby the learned Vakil sought to distinguish this decision from the present case, namely, that as the defendant No. 2 was previously on the land the question of title had to be (sic)invesigated.
2. In the result both points fail and this appeal is dismissed with costs.
3. It is pointed out by the learned Vakil for the appellant that the decree of the lower
4. Appellate Court mast be modified to this extant so that it may appear that