Kunjbehari Rai vs Buni Sinha and Others

Varma, J.—This is an appeal on behalf of the defendant first party arising out of a suit for a declaration that plot No. 603 in village Koilam, bearing touzi No. 2873, was the kasht of the plaintiff. The Courts below have decreed the suit. The case for the defence was that the plaintiff was a party to a batwara proceeding and should not be allowed to raise the question in a suit in the civil Court.

B.N. Mitter, appearing on behalf of the appellant has raised three points before me. Firstly, that the suit is barred by the provisions of Section 119, Estates Partition Act, (Bengal Act 5 of 1897); secondly, that it is-barred by limitation under Article 14, Limitation Act, the order of the revenue Court having been made final on 3rd December 1931, and the present suit being filed on 6th May 1936 and thirdly, that the appellant is estopped by the principles of res judicata u/s 119, Estates Partition Act. So far as the third point is concerned, it is merely another way of putting the first point that the suit is barred by the provisions of Section 119 of the Act.

So far as the first point is concerned, a large number of decisions have been referred to wherein under certain circumstances it was held that the civil Court was not entitled to go into the same question if it had already been agitated in a-revenue Court: see Ram Bahadur Singh v. Keahava Frasad Singh AIR 1930 Pat 180; Rajeshwar Singh v. Shyam Bihari Singh AIR 1927 Pat 286, Kesari Sahai Singh v. Hitnarayan Singh AIR 1920 Pat 228 , Sukhilal Sah Vs. Angrahit Jha, and Lal Das v. Ram Narain 63 Ind.Cas 2. But looking at the provisions of Section 119, it; is clear that, what is barred thereby or not liable to be contested or set aside by civil suit are orders passed under the different sections referred to in Section 119, and not a suit by any person claiming an interest in land.

On this point I cannot do better than refer to the decisions followed by the lower appellate Court, viz., Janki Nath V. Kali Narain Roy 37 Cal 662 and Ajodhya Prasaa v. Ram Khelawan Singh AIR 1926 Pat. 421. On a scrutiny of Section 119 I see no force in the first contention raised by Mr. Mitter.

The second point urged by Mr. Mitter is that the suit is barred by limitation because it was filed more than one year after the order complained against. Article 14 of Schedule 1, Limitation Act, prescribes one year from the date of the final decision or order to set aside any act or order of an officer of Government in his official capacity. In this case we have to look into the nature of the suit. The cause of action given in the plaint is on the full-moon day of Jeth 1343 corresponding to 6th April 1936, when the defendant is alleged to have refused to comply with certain requests of the plaintiff. Some attempt was made to show that if the declaration is allowed it would be really a case of interfering with the order of the revenue Court and, therefore, it does not matter in what manner the plaint is worded. But one has to look to the real object of the suit. The plaint as a whole is really with regard to the title to the land and does not seek to set aside any order of the revenue Court. This point also, therefore, fails.

For these reasons I would dismiss the appeal with cost. Leave to appeal is refused.