The main legal point established in the judgment is the applicability of Section 106 of the Bengal Tenancy Act to the dispute regarding entries in Khatian No. 312 and the impact of Section 66 of the Civil Procedure Code on the suit.

JUDGMENT

Pal, J. - These two appeals arise out of a suit u/s 106, Ben. Ten. Act. The dispute relates to the entries in Khatian No. 312 of mouja Sahapore, J.L.S. P.S. Behala. The khatian is Ex.20 in this case. It records defendant 2, Rai.Manmathanath Mitra Baha-dur, owner of touzj No.93 in 5 annas 6 pies share and defendant 3, Nagendranath Palit, owner of touzi NO.101 in 10 annas 6 pies share as the landlords, Kumudini Dasi as the tenant in possession, Rs.43-4-1 as the rent payable for the tenancy and 2.02 acres as the area of the lands comprising the tenancy. The status of the tenant is recorded as tenure-holder and the rent is recorded as liable to enhancement.

2. The plaintiffs' ease is that their uncle Kedarnath Haldar was the real tenant. Their uncle Kedarnath Haldar and after him his widow Basanta Kumari having died before the Cadastral Survey leaving no children, they inherited the estate of Kedarnath and thus became entitled to and came into possession of the tenancy in question at the date of the Cadastral Survey. Consequently, their name should have been recorded as tenants in the place of the name of defendant l Kumu-dini Dasi. The tenancy in question was admittedly sold in execution of a decree for its own arrears of rent in 1903 and the certified auction-purchaser at that sale was one Jadu-nath Sen. This Jadunath Sen in 1904 executed a deed of release (Ex.C) in favour of one Rashbehari Mitter, husband of defendant 1, stating that the purchase was with the money of and for the benefit of Rashbehari.

3. The plaintiffs' case is that the purchase was really with the money of and for the benefit of Kedarnath Haldar, that Jadunath Sen was merely a benamidar of Kedarnath and that the release (Ex.C) from Jadunath was really taken by Kedarnath in the benami of Rashbehari, that on Eashbehari's death his widow, defendant 1, executed another release (Ex.l) whereby she admitted all these facts and relinquished her claim to the tenancy in favour of the real purchaser Kedarnath Haldar in 1916, and that since the purchase Kedarnath Haldar and after him his heirs and successors including the plaintiffs have all along been in possession of the tenancy by exercising various acts of possession and of ownership. As regards the entries relating to the amount of rent payable and the area for which it is payable the plaintiffs' case is that originally the rent payable was Rs.49-2-13 for an area of 19 bighas 4 cottas and 8 chhataks. After the aforesaid auction sale a portion of the lands of this tenancy was acquired by the Government for K.R. Railway and Kedarnath Haldar sold away portions to different persons. The landlords, defendants 2 and 3, gave kharij to these purchasers. After all these transfers and acquisitions only 2.2 acres of land are now left as comprising the tenancy in possession of the plaintiffs, for which Rs.15 is the rent payable. The plaintiffs also questioned the entry relating to the incidents of the tenamey. The issue was decided against them by the Court of first instance and it is no longer in dispute in the appeal before me. The Cadastral Survey record was finally published on 21st August 1931 and the present suit was instituted on 2lst December 1931.

4. Defendant 1, Kumudini Dasi, appeared and filed a written statement on 15th December 1932, stating inter alia that she had sold away her interest in the tenancy to one Sarat Chandra Mitra on 1st October 1931. She thus disclaimed all present interest in the property. She however denied all the allegations of the plaintiffs relating to the title of Rashbehari and Kedarnath and asserted that her husband was the real purchaser. Defendant 2, Kumar Manmathanath Mitra Bahadur, filed his written statement on 28th September 1932, contesting the claim of the plaintiffs and defendant 3, Nagendranath Palit, filed his written statement on 12th November 1932, denying the plaintiffs' title to the tenancy. On 17th March 1933, Sarat Chandra Mitra, who was set up by defendant 1 in her w