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 It is urged that Section 109 bars a suit even if the previous suit was withdrawn, and reliance is placed upon the case of Abeda Khatun v. Majubal