JUDGMENT 1. This appeal arises out of 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, situated in the patni of the defendants 8 and 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 them in taking possession he surrendered the lands to the plaintiffs. The main defence was that the lands were not included in the plaintiffs nim-howla but were the khas lands of the patnidar, that the suit was barred by the provisions of S. 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 appellant is that the suit is barred by the provisions of S. 109 of the Bengal Tenancy Act. It appears that the plaintiffs brought a suit under S. 106 of the Bengal Tenancy Act, but withdrew from the suit with liberty to bring a fresh suit. It is urged that S. 109 bars a suit even if the previous suit was withdrawn, and reliance is placed upon the case of Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 . S. 109 of the Bengal Tenancy Act lays down that subject to the provisions of S. 190 A, a civil Court shall not entertain, any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Ss. 105 to 108 both inclusive. But where a suit is withdrawn with liberty to bring a fresh suit we think it must be regarded as hiving been nonexistent. 3. A similar view was taken in Cheodditti v. Tulsi Singh (1912) 40 Cal. 428 = 18 I.C. 130 = 17 C.W.N. 467, where an application under S. 105 was withdrawn without liberty to bring a fresh suit. The learned Judges (Chitty and Teunon, JJ.) held that an application under S. 105 cannot be regarded as a suit and that therefore although an application was withdrawn without liberty to bring a fresh application, a suit for enhancement of rent is not barred by the provisions of S. 109. The learned Judges (Chitty and Teunon, JJ.) held that an application under S. 105 cannot be regarded as a suit and that therefore although an application was withdrawn without liberty to bring a fresh application, a suit for enhancement of rent is not barred by the provisions of S. 109. In Kamini Sundari v. Abdul (1918) 23 C.L.J. 254 = 47 I.C. 420, Teunon and Richardson, JJ. following the above case held that an application (under S. 105) made, but withdrawn, is to be treated as one never made. In the case of Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 , however, there, is an observation of Mookerjee, A.C.J and Fletcher, J. that an application which has been made whether it is withdrawn or whether it is dismissed for non-prosecution is nevertheless an application made within the meaning of S. 109. But in that case the application under S. 105 was dismissed for non-prosecution. 4. Where an application or a suit has been dismissed whether upon the merits or for non prosecution, it comes within the words "has been the subject-matter" of the application or the suit, and the applicant cannot avoid the consequences merely by not prosecuting the application or suit. Where however, as in the present case, a plaintiff in a suit under S. 105 has been permitted to withdraw from the suit with liberty to bring a fresh suit, we think it should be treated as one not having been brought. The application under S. 105 in the cases of Cheodditti v. Tulsi Singh (1912) 40 Cal. 428 = 18 I.C. 130 = 17 C.W.N. 467, and Srimati Kamini Sundari v. Abdul Habin (1918) 23 C.L.J. 254 = 47 I.C. 420, was withdrawn without liberty to make a fresh application and the observations of the learned Judges in the case of Srimati Abeda Khatun and Others Vs. Majubali Chowdhury and Others, AIR 1921 Cal 455 , as to the effect of withdrawal of an application, must be taken to apply to a case where the application is withdrawn without liberty to make a fresh application. 5. It is contended that the revenue officer had no power to give liberty to bring a fresh suit in the Civil Court. 5. It is contended that the revenue officer had no power to give liberty to bring a fresh suit in the Civil Court. But it is unnecessary to decide that question, because, assuming that he had no power to do so, he could allow the suit to be withdrawn with liberty to bring a fresh suit in his own Court, and the effect of such an order must be taken to be, (as we have said above) as if the suit had never been brought. We are accordingly of opinion that the suit is not barred by the provisions of S. 109 of the Bengal Tenancy Act. 6. No question of limitation arises in this case as the suit is for recovery of possession on declaration of title, and the suit is brought within 12 years of the dispossession. 7. The next contention is that the Court below in arriving at the conclusion that plaintiffs have proved their title and possession, has relied upon certain documents (Exs. 3 to 6) which are inadmissible, in evidence. These documents were executed between strangers to the suit, and the lands in dispute were referred to in the boundaries of lands dealt with in those documents. 8. It is contended on behalf of the respondent that the documents objected to, were used in Suit No. 1882 out of which Appeal No. 1341 arises and not in this case, the documents which have been used in this case being Exs. 15 F, and 21 to which no exception can be taken. It appears however that the evidence relating to both the suits as considered together and the Court below in more than one place refers to the recital of nim howla Assaruddi and Howla Haris Chandra in the boundaries of the documents, Exs. 3 to 6. That being so, it is difficult to say that they were not used in evidence in deciding this case. 9. In the case of Dwarka Nath v. Mukundu Lal (1906) 5 C.L.J. 55, it was held that documents though not inter partes containing recitals that a particular land belongs to a particular tenure which is in question, are admissible in evidence under either S. 11 (6) or S. 13 of the Evidence Act; although they are not conclusive or binding evidence and may be very weak evidence or even of no weight at all. A contrary view was however taken in Abdul Ali v. Syed Rejan (1913) 19 C.W.N. 468 = 21 I.C. 618. 10. The question, whether recitals in boundaries of other lands in documents between third parties (such as there are in the present case) are admissible in evidence under S. 11 or S. 13 of the Evidence Act was considered in the case of Abdullah v. Kunj Behary Lal (1911) 14 C.L.J. 467 = 12 I.C. 149 = 16 C.W.N. 252, and was answered in the negative. The question is not free from doubt, but having regard to the recent decisions on the point, we bold that Exs. 3 to 6 are not admissible in evidence. 11. There is, no doubt, considerable other evidence, both oral and documentary, in support of the finding of the Court below, but in second appeal we cannot uphold the finding upon the other evidence after excluding the evidence which is inadmissible. We are accordingly constrained to send the case back to the lower Appellate Court for a finding upon the other evidence upon the record. 12. Second Appeal No. 1341 arises out of Suit No. 1882. In this case no question, arises whether the suit is barred by S. 109, Bengal Tenancy Act, as there was no previous suit under S. 106. But the question of limitation has been urged in this case. 13. It appears that the record-of-rights was published in February, 1907 and the suit was instituted on the 15th December 1914, i.e., more than 6 years after the publication of the record-of-rights. But the plaintiffs do not pray for correction of any entry in the record-of-rights. It is contended that a suit for declaration of title is governed by Art. 120 of the Limitation Act, and the cases of Mehabharat Shaka v. Abdul Hamid Khan (1904) 1 C.L.J. 73, and Shyamananad v. Raj Narain. (1906) 4 C.L.J. 568 = 11 C.W.N. 186 are relied upon. There is also a prayer for confirmation of possession. It is unnecessary to consider whether a suit for confirmation of possession is governed by Art, 120 because assuming that Art. 120, applies, the plaintiffs stated that their cause of action arose when the defendants attempted to disturb the possession of the. plaintiffs. 14. There is also a prayer for confirmation of possession. It is unnecessary to consider whether a suit for confirmation of possession is governed by Art, 120 because assuming that Art. 120, applies, the plaintiffs stated that their cause of action arose when the defendants attempted to disturb the possession of the. plaintiffs. 14. The attempt at dispossession was made in 1914 (i.e., within 6 years of the suit) and the plaintiff's case on the point has evidently been accepted by the Courts below. It is true that the entry in the record of rights was made more than 6 years before the suit, but the entry merely raised a presumption of correctness against the plaintiffs and they had to prove by evidence that it was incorrect. 15. We are accordingly of opinion that the suit is not barred by limitation. The question of admissibility of Exs. 3 to 6 in evidence arises in this case. We have already dealt with the question in Appeal No. 1380, and our decision on the point will govern this case also. The learned pleader for the respondent pointed out that two of the documents viz. Exs. 3 and 4 were not executed by third parties, the executant being a co-owner of the him howla under which the plaintiff's claim the raiyati jote and was therefore interested in the land, The Court below will consider the point in this case, as also in suit No. 13+, if it applies to that suit. 16. Objection is also taken to the admissibility of Exs. 1 and 2. It is found however that the original records are destroyed, and the copies were admitted as secondary evidence. We do not think therefore that there is anything in that objection. 17. The last contention is that there is no specific finding whether the land in dispute is included in the raiyati jote claimed by the plaintiff. 18. 1 and 2. It is found however that the original records are destroyed, and the copies were admitted as secondary evidence. We do not think therefore that there is anything in that objection. 17. The last contention is that there is no specific finding whether the land in dispute is included in the raiyati jote claimed by the plaintiff. 18. The Court of appeal below has come to the finding that the lands in suit "were within the howlas as stated above," and in an earlier part of the judgment it refers to "the howlas, nim howlas and raiyati as set up by the plaintiffs." It seems therefore that by the words "within the Howlas as stated above," the Court below meant to find that the lands were included within the raiyati jote set up by the plaintiffs but it might have been made clearer, because the raiyati jote and the howla are not coextensive, and as the case is going back, the Court below will come to a clear finding upon the point whether the lands are included within the raiyati jote set up by the plaintiffs. So far as the case is concerned (No. 1380), we think the finding that the lands are included in the howla is sufficient, because no raiyati jote was claimed, in that case. 19. The result is that both the cases must go back to the appellate Court for a fresh decision upon the evidence on the record other than the documents; which are inadmissible in evidence, having regard to the observations made above. 20. Costs to abide the result.