Djhani Sao vs Bishun Prasad Singh and Another

Dhavle, J.—This appeal arises out of a suit for a declaration substantially to the effect that plaintiffs'' share in tauzi No. 11010 should correspond to three annas six pies of the original estate (and not less) and that the defendant''s share should correspond to one anna (and not more). The lower Courts have concurrently held that the plaintiffs have made out their case. Defendant appeals, and on his behalf two points have been raised.

The first point is that the suit was barred u/s 42, Specific Relief Act. This point was taken in the written statement of the defendant and an issue was actually framed on it. It appears from the judgment of the trial Court, however, that the issue, like some others, was not pressed. The point was raised in the lower Appellate Court, but the learned Additional District Judge who heard the appeal pointed out that though it had been stated in the memorandum of appeal that the point had been pressed in the lower Court, there was no affidavit in support of the allegation, and that therefore the point could not be entertained.

He also however looked into the point on merits and came to the conclusion that there was nothing in it on the ground that there was no evidence to show that the plaintiffs did not possess the share claimed by them, and that though the defendant had obtained some rent decrees against some tenants in respect of the share recorded in his name in the Land Registration Register, which share is in excess of what has now been made out to belong to him properly, this cannot amount to plaintiffs'' dispossession.

The learned advocate for the defendant-appellant has urged before us that the suit is obnoxious to Section 42, Specific Relief Act, on yet another ground, namely that the plaintiffs cannot content themselves with the declaration regarding the extent of their share that they have sought, but will have to get the entry in the Land Registration Register corrected, and that therefore they should, as a consequential relief, have asked for a cancellation or correction of that entry. It is impossible to entertain this argument. The Civil Court does not exercise jurisdiction over the Land Registration Department of the Collector at all, though when moved in the right way, it will give a declaration regarding the shares of parties, or even a declaration that certain entries in the Collector''s registers are wrong. But that is a very different thing from the Civil Court directing that entries in the Collector''s registers be corrected. In my opinion the plaintiffs were not bound to move the Civil Court for any declaration other than the one that they sought.

The next point raised by the learned advocate is that the suit was barred by the one year''s limitation prescribed under Article 14, Limitation Act. The trial Court and the lower Appellate Court overruled the contention on the authority, as they thought, of Hero Mandal v. Dhiranath Das AIR 1925 Pat. 784.

The learned advocate for the appellant has distinguish, ed this ruling as given in a case where there was no question of setting aside any act or order of an officer of Government in his official capacity, for the Subdivisional Magistrate had himself referred the plain, tiff to the Civil Court. But, as a matter of fact, the plaintiffs before us have not by their plaint attempted to get any act or order of an officer of Government in his official capacity set aside at all, nor does it appear necessary, as I have already shown for them to have done so. It is true, as the learned advocate pointed out, that the plaintiffs will not be able to recover rents according to their share now established until they get that share entered in the register kept in the Collector''s Land Registration Department, but they cannot get that done by an order or precept from the Civil Court, and they may quite easily be able to get it done in the Colleetorate, now that they are armed with the necessary declaration from the Civil Court. The learned advocate for the appellant has cited two cases in support of the contention that in the circumstances of the present case Article 14, Limitation Act, does apply.

The first was Nagu v. Salu1891 15 Bom 424 and this is clearly inapplicable. It was a case where a Collector had granted a piece of open ground u/s 37, Bombay Land Revenue Code, and it was held that the suit was time barred because it was not brought within one year as provided for in 8. 135 of the Bombay Land Revenue Code (Bombay Act 5 of 1879).

The other case cited by the learned advocate was Ganesh Shewho Deshpande v. Secy. of State AIR 1936 Bom. 105. This was a case in which the Collector had passed an order of forfeiture of a Survey number and the plaintiff''s appeal to the Commissioner against that order was dismissed. Plaintiff then sued to get the order of forfeiture set aside as illegal and ultra vires, and contended that the time taken up in appeal to the Revenue authorities be excluded in reckoning the period of limitation.

The contention was overruled on grounds which it is not very necessary to state. But it is impossible to see how the decision can help the appellant, seeing that the plaintiff in that case had expressly sued to get the order of forfeiture set aside as illegal and ultra vires. In the present case nothing of the kind has happened. The plaintiffs have refrained from asking that the order of the Land Registration Deputy Collector by which their share was reduced and that of the defendant entered at an amount which appears to be wrong be set aside by the Civil Court.

Both the points urged on behalf of the appellant fail. I would accordingly dismiss the appeal.

Agarwala, J.

I agree.