The main legal point established in the judgment is the interpretation and applicability of Section 109 of the Bengal Tenancy Act and the admissibility of documents in evidence.

JUDGMENT

1. This appeal arises out Suit No. 134 brought by the plaintiff for a declaration that the lands in dispute form part of their nimhowla Asaruddi within howla Haris Chandra situate in the patni of the defendants Nos. 8 or 9, and for recovery of possession of the said lands. The Plaintiffs alleged that they let out the lands for one year to a subtenant in 1321, but the defendants having obstructed then in taking possession, he surrendered the lands to the plaintiffs. The main defence was that the lands were not included in the plaintiffs' nimhowla but we khas lands of the patinidar, that the suit was barred by the provisions of Section 109 of the Bengal Tenancy Act and was also barred by limitation. The Courts below have concurred in decreeing the suit.

2. The first contention raised on behalf of the appellants is that the suit is barred by the provisions of Section 109 of the Bengal Tenancy Act. It appears that the plaintiffs brought a suit u/s 106 of Bengal Tenancy Act, but withdrew from the suit with liberty to bring a fresh suit. It is urged that Section 109 bars a suit even if the previous suit was withdrawn, and reliance is placed upon the case of Abeda Khatun v. Majubali Chowdhury 59 Ind. Cas. 760 :24 C.W.N. 1020 : 48 C. 157 : 33 C.L.J. 304 Section 109 of the Bengal Tenancy Act lays down that "subject to the provisions of Section 109A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken u/s 105 to 108, both inclusive." But where a suit is withdrawn with liberty to bring a fresh suit, we think it must be regarded as having been nonexistent A similar view was take in Chiodith v. Tulsi Singh 18 Ind. Cas. 130 : 40 C. 428 : 17 C.W.N. 467 where an application u/s 105 was withdrawn without liberty to bring a fresh suit. The learned Judges (Chitty and Tunon JJ.) held that an application u/s 105 cannot be regarded as a suit, and that, therefore, although an application was withdrawn without liberty to bring a fresh application, a suit for enhancement of rent id not barred by the provisions of Section 109. In Kamini Sundari v. Abdul Halim 47 Ind. Cas. 420 : 28 C.L.J. 254 Teunon and Richardson, JJ., following the above sane, held that an application (under Section 105) made, but withdrawn, is to be treated as one never made. In the case of Abeda Khatun v. Majubali Chowdhury 59 Ind. Cas. 760 : 24 C.W.N. 1020 : 48 C. 157 : 33 C.L.J. 304, however, there is an observation or Mookerjee, A.C.J., and Fletcher, J, that an application which has been made, whether it is withdrawn or whether it is dismissed for non prosecution, is nevertheless an application made within the meaning of Section 109. But in that case the application u/s 105 was dismissed for non prosecution. Where an application or a suit has been dismissed, whether upon the merits or for non prosecution, it comes within the words "has been the subject-matter" of the application or the suit, and the applicant cannot avoid the consequence merely by not prosecuting the application or suit. Where, however, as in the present case, a plaintiff in a suit u/s 106 has been permitted to withdraw from the suit with liberty to bring a fresh suit, we think it should be treated as one not having been brought. The application u/s 105 in the cases of Chiodith v. Tulsi Singh 18 Ind. Cas. 130 : 40 C. 428 : 17 C.W.N. 467 and Kamini Sundari v. Abdul Halim 47 Ind. Cas. 420 : 28 C.L.J. 254 was withdrawn without liberty to make a fonh application and the observations of the learned Judges in the case of Abeda Khatun v. Majubali Chowdhury 59 Ind. Cas. 760 : 24 C.W.N. 1020 : 48 C. 157 : 33 C.L.J. 304, as to the effect of withdrawal of an application, must be taken to apply to a case where the application is withdrawn without liberty to make a fresh application.

3. It is contended that the Revenue Officer had no power to give liberty to bring a fresh suit in the Civil Co