JUDGMENT

Caspersz, J. - In its original form the plaintiff's suit included a prayer for amendment of the settlement khatian in which was recorded the defendant's name as to 1/3 share of the tank in suit. But, subsequently, in the first Court, that prayer was withdrawn, and the decree passed by the Munsif, in favour of the plaintiff, was one declaring his exclusive right to the disputed tank and confirming his possession in the same. In appeal the District Judge of Tippera has affirmed that decree.

2. In second appeal, the contentions submitted on behalf of the defendant-appellant are these: first, that, inasmuch as the plaintiff's suit u/s 106 of the Bengal Tenancy Act was withdrawn, no further suit will now lie; secondly, that the defendant's name being entered as to 1/3rd share (in the khatian), the presumption is in his favour, and that it was incumbent on the plaintiff to rebut it; thirdly, that the lower Courts have erred in having regard to the qabuliat, Exhibit 1, executed by the plaintiff in favour of his landlord, because the original was not called for and it would, in any case, be irrelevant against the defendant, and, fourthly, that a suit like this is not maintainable in