JUDGMENT

Holmwood and Chatterjee, JJ. - The defendant No. 1 is the zemindar of a certain mouza called Kaytha now in the district of Birbhum. Defendants Nos. 2 and 3 are the patnidars and plaintiff is the dar-patnidar of the said mouza. Subsequently to the creation of these tenures the Government resumed the chowkidari chakran lands of the mouza under Bengal Act VI of 1870, and made a transfer of the same to defendant No. 1 u/s 50 of the said Act on several dates in 1898, 1899 and 1900 at a total jama of 215 rupees, and defendant No. 1 made raiyati settlements of the said lands with defendants Nos. 4 to 18 who are in possession. The plaintiff brings this suit on the allegation that the defendant No. 1 having transferred all his rights in respect of the mouza to the patnidars, and the patnidars having similarly transferred all their rights to the dar-patnidar, subject of course to the payment of the respective head rents, she as dar-patnidar was entitled to khas possession of the said lands at the jama payable to the Collector. She prays that she may recover khas possession and that proper deeds of transfer may be executed in her favour by defendant No. 1. The Subordinate Judge gave a decree for recovery of possession with mesne profits from date of decree, but left to a future suit the determination of the terms on which the plaintiff was to hold the lands. On appeal, the District Judge of Birbhum has upheld the decree of the Subordinate Judge, and in second appeal it is contended on behalf of defendant No. 1--(i) that the suit has been wrongly framed; it ought to have been one for the specific performance of a contract pure and simple without any prayer for possession, and that it should be dismissed on this ground alone; and (ii) that the suit is barred by limitation.

2. In support of the first plea the learned vakil for the appellant contends that defendant No. 1 had no title in the disputed lands before the transfer by the Collector, and he could not therefore have made any valid transfer of the same at the time of the patni, nor on the same ground could the patnidar transfer any title to the dar-patnidar; that the jural relation created by the patni and the dar-patni leases in respect of the disputed land was no more than that of a mere agreement to grant, contingent upon a subsequent transfer, and this agreement must be specifically enforced before the plaintiff could have a title which would entitle her to treat defendant No. 1 or his lessees as trespassers and to sue for recovery of possession. He relies upon two cases as supporting his contention: Ranjit Singh v. Radha Charan Chandra (I.L.R. 1907) Cal 564 and Kashim Sheik v. Prasanna Kumar Mukerjee ILR (1906) Cal 596. It is conceded that the former case has been dissented from in a later case, that of Banwari Mukunda Deb v. Bidhu Sundar Thakur ILR (1908) Cal 346 and the latter case distinguished by one Judge and dissented from by another in the case of Kazi Newaz Khoda v. Ram Jadu Dey ILR (1906) Cal 109 and it is contended that a reference ought to be made to a Full Bench in consequence of this conflict. The second ground depends upon the decision of the first. The learned vakil for the respondent contends that the suit is rightly conceived, in that it does contain a prayer for specific relief by way of execution of a proper deed of settlement and contains a further prayer for consequential relief by way of possession, so that even if the right view of the law were that enunciated in the case of Ranjit Singh v. Radha Charan Chandra ILR (1907) Cal 564 there is no defect in the form of the suit and no reference to a Full Bench is necessary: he also contends that if that view is not right still his suit is well conceived, in that he prays for recovery of possession as his main relief and the other reliefs as ancillary thereto.

3. We have carefully considered the plaint and we have no doubt it is rightly conceived in either view of the law we do not think that the joining of