JUDGMENT
William Ewart Greaves, J.
1. This appeal arises out of a suit for declaration of the plaintiff’s title to and recovery of possession in respect of certain shares in a taluk bearing Towzi No. 328 of the Myrnensingh Collectorate. The plaintiff’s name was recorded in the finally published Record of Rights as the owner of 8 gandas 3 karas, and 5, dantis. The defendant No. 1 in the present suit thereupon instituted a suit under Section 106 of the Bengal Tenancy Act for a correction to be made in the entry of the names of the owners of the taluk and alleged that, she had 14-annas and odd share therein and in the said suit she made one Jowhar Ali who is defendant No. 2 in the present suit, pro forma defendant, alleging that the said Jowhar Ali had 1-anna odd gamiastshare in the said taluk. The defendant Nov I was successful in the said, proceedings. The plaintiff thereupon has instituted the present suit. In the suit as originally framed there were besides the prayers for declaration of title and recovery of possession a prayer for setting aside the order of the Revenue Officer made in the proceeding under Section 106 of the Bengal Tenancy Act and also a prayer for an order for recording the plaintiff’s name as owner in respect of the said 8 gandas and odd share. These two latter prayers, however, were withdrawn and the suit was decreed by the Court of first instance in giving the plaintiff declaration of his title to the said share and a decree for khas possession in respect of the same. That decision has been affirmed on appeal by the learned’ Subordinate Judge. The defendants then have preferred this appeal.
2. Two grounds have been urged in support of this appeal. The first ground is to the effect that the decision in the suit under, Section 103. of the Bengal Tenancy Act operates as res judicata in respect of the plaintiff’s claiman the present suit. This contention, however, is against a series of decisions, of this Court amongst which reference may be made to the cases of Padmalav v. Lukmi Rani 12 C.W.N. 8, Kali Sundari Debya v. Girija Sankar Sanyal 11 Ind. Cas. 181 : 15 C.W.N. 974, Ram Chandra v. Nanda Nandanananda. Deb 20 Ind. Cas. 298 : 19 C.L.J. 197 : 18 C.W.N 938 and Pran Krishna Salt a v. Trailakya Nath Ghoudhuri 27 Ind. Cas. 883 : 19 C.W.N. 911. It has been urged on behalf of the appellants that although there are these decisions of this Court upon the point in question the earliest decision upon which the later ones proceed,.namely, the case of Padmalav v. Lukmi Rani 12 C.W.N. 8 related to the provisions of Ch. X, of the Bengal Tenancy Act prior to the amendment in 1007. The argument in substance is that now that the Revenue Officers have much wider powers under the” provisions of that Chapter and inasmuch as in, framing the record under, Section 102 of the Bengal Tenancy Act the Revenue Officer has to Record under Clause (dd) of that section the name of each proprietor in the local area or estate it necessarily follows that the Revenue Officer has got to consider and determine the question of, title as between rival proprietors. I am of opinion that not with standing the introduction of Clause (dd) in Section 102 of the Bengal Tenancy Act, the rulings to which, reference has been; made must be regarded as laying down the law correctly. Section 104, Clause (4) of the Act lays down that the survey shall be made and the Record of Rights prepared in accordance with rules made in this behalf by the Local Government, and it stands to reason that an entry made in accordance with the rules by the Revenue Officer cannot be altered or corrected in a suit under Section 106 of the Bengal Tenancy Act. Rule 49, Clause (4) says that the application under Section 101, Sub-section 2(a) made by a proprietor shall not be admitted unless the name of the applicant and the extent of his interest are registered under the Land Registration Act of 1876. Rule 58 says that the petition recording the ownership of land or the ownership of any interest in land shall be decided by the Revenue Officer on the basis of actual possession. What the Revenue Officer has to go upon primarily is the question of possession, and in making an entry in the record of the name of each proprietor in the local area or the estate under Clause (dd) of Section 102 the Revenue Officer has to do the same. A party who is not in possession cannot seek to recover possession in a suit under Section 106 of the Act. The alteration in the law, therefore, has not, in my opinion, affected in any way the authority of the decision in the case of Padmalav v. Lukml Rani 12 C.W.N. 8 to which I have referred and the reasons upon which the said decision is founded still hold good. The first contention urged on behalf of the appellants, therefore, fails.
3. The next contention urged on behalf of the appellants in substance amounts to this. The plaintiff in his plaint stated that he had been dispossessed by reason of the entries that have been made in accordance with the order passed in the suit under Section 106 of the Bengal Tenancy Act. The defendants in their written statements alleged that they were in possession for a period long over 12 years and that the plaintiff’s rights had been barred. There was a decree for partition amongst the co-sharers on the 24th March, 1909. The suit was instituted against the defendant No. 1 on the 17th January, 1921, but the defendant No. 2 was not made a party to the suit till the 1st December, 1921. The learned Subordinate Judge in disposing of the question as to whether the suit was barred by limitation or not held that it was not barred, inasmuch as the partition decree was dated the 24th March, 1809, and the suit was filed on the 13th January, 1921. The learned Subordinate Judge appears to have overlooked the fact that the defendant No. 2 was not made a party till the 1st December, 1921. The institution of the suit on the 13th January, 1921, cannot possibly be taken to have affected the defendant No. 2 against whom the suit must not be treated as having been instituted till the date on which he was made a party. The question of limitation so far as the defendant No. 2 is concerned, therefore, does not seem to have been, properly considered by the Subordinate Judge.
4. In this view of the matter I set aside the decree passed by the learned Subordinate Judge and send the case back to his Court in order that he may determine the question of limitation taking into consideration the fact that defendant No. 2 was made a party to the suit on the 1st December, 1921, and having regard to all the other facts and circumstances of the case.
5. This is the only question which now remains for his determination.
6. The costs will abide the result.
Gpeaves, J.
7. I agree.
