The judgment establishes the principle that the limitation for rent recovery may not be saved if the proceedings under a specific section of an act are not founded upon the same cause of action as the present suit.

JUDGMENT

Ewart Greaves, J. - This is an appeal by the plaintiffs against a decision of the learned District Judge of 24-Pargannas, affirming a decision of the Subordinate Judge of the Third Court of Alipur. The suit out of which this appeal arises was brought by the Port Canning and Land Improvement Company, Ltd., as landlords to recover from the defendants who were non-occupancy raiyats rent for a period of seven years from 132U to 1326.

2. There is no dispute with regard to the years 1323 to 1326 inclusive. But the dispute between the parties is as to whether or not the rent for the years 1320; 1321 and 1322 is barred by limitation. The appellants contend that their claim for these three years is not barred and they say that this is so because during these years they were prosecuting a claim under the provisions of Section 46 of the Bengal Tenancy Act. These proceedings were commenced on the 28th of March 1913. Now, the suit u/s 46 was dismissed by the first Court, and by the lower Appellate Court. But on appeal to this Court the claim for enhancement was allowed on the 24th of June 1919, this Court holding in second appeal that the appellants were entitled to have a fair and equitable rent fixed by the Court. The matter was sent back to the first Court for the fixing of a fair and equitable rent and when this was fixed there was an appeal against the first Court's decision and the fair and the equitable rent was not finally fixed until some time in the year 1923. The present suit was commenced on the 14th April 1920, rent being claimed at the old rate as, for the reasons which I have stated, the fair and equitable rent directed to be fixed by this Court on the 24th June 1919 had not at that time been determined. But the appellants say that it was necessary for them to commence their suit claiming rent at the old rate, as they did, because if they had left the matter to run any further, in their view the land was not sufficient in value to realize the decree for rent which they ultimately would obtain. It thus appears that the appellants support their claim for the rent for the three years 1320, 1321 and 1322 on the ground that, they say, their claim for the rent must be deemed to have been in suspense from March 1913 until June 1919 when the Section 46 case was in progress and they say they could not really have brought their suit during these years as rent was not fixed and finally determined.

3. The defendants on the other hand contend that by virtue of the provisions of Article 2(6) of the Third Schedule to the Bengal Tenancy Act the rent for these three years is not now recoverable.

4. Article 2(b) provides that the period of limitation for the recovery of an arrear of rent in other cases not provided by the previous Sub-section is three years from the last day of the agricultural year in which the arrear fell due. The respondents further contend that proceedings u/s 46 are merely proceedings for ejectment and it has been held in various cases of this Court that during the pendency of a suit for ejectment the claim for rent is not in abeyance by reason of the suit. Now, in my view it is not right to say that the proceedings u/s 46 are merely proceedings for ejectment for I think they are proceedings not merely for ejectment but to have a fair and equitable rent assessed by the Court. If the tenant has refused to accept the agreement filed under the provisions of Section 46 it is then alone that a suit for ejectment under that Section can be commenced. There is nothing, therefore, I think, in this point.

5. But the real difficulty appears to be whether there are any provisions of the Limitation Act which provide for the suspension of the rent during the pendency of the Section 46 proceeding unless there is to be found some such provision in the Limitaiion Act then the provisions of Article 2(b) of Schedule III of the Bengal Tenancy Act must operate. Now, it seems to me that the only Section of the Limitation Act which could b