Ramjee Prasad vs Rai Bishundutt and Others

Adami, J.—The plaintiff in this suit sought for a declaration of his title, to and confirmation of, his possession in certain shares in the estate of Bishanpur Sad. Previous to 1896, the plaintiffs share was shown in the Register D of the Land Registration Department to be 2 annas 16 gundas 1 kowri 1 krant 1 dant. In 1896 the estate was partitioned and divided into eight puttis;one of these was the residuary putti which is the subject of the suit.

Shortly stated, the plaintiff''s case is that after the partition the shares of the various cosharers in the residuary putti were entered in the name of one of the sharers only, and the separate shares of the different cosharers were not shown. Rai Brahma Dutt, who alone was shown in Register D, seems to be the brother of the plaintiff.

The plaintiff, in February 1902, purchased an eight annas share in the putti at an auction sale held in execution of a mortgage decree; and in June 1902, he applied for the registration of his name in respect of the purchased share. He was registered for 7 annas 14 gundas share and was left jointly recorded with the other cosharers for the rest of the share. The plaintiff afterwards, in 1912, applied to the Land Registration Department u/s 42, Land Registration Act, pointing out that the Register D did not show his shares separately as had been shown in the register previous to the partition. The Deputy Collector held that Section 42 did not apply and rejected his, application. The plaintiff then made another application under Sections 28 and 29 of the Act, making the same request as he had before, namely that his shares should be separately recorded. Defendants, 1st and 2nd parties to this suit, both objected before the Deputy Collector, and on 7th May 1914 the Deputy Collector found that a question of title was involved and that he could not decide the case; he rejected the application telling, the petitioner that he might go to the civil Court, if so advised, for a declaration of his specific interest in each of the three villages which formed the putti.

The plaintiff then instituted the present suit on 30th July 1914. According to his plaint, the Defendant 1, Ramjee, had been recorded in the register for a larger share than he was entitled to, and the plaintiff sought to have some part of this share taken from Ramjee, and also a portion of a share taken from another defendant and added to his own share.

It is unnecessary in this second appeal to mention the shares claimed; it is sufficient to say that both the Courts below have found that the plaintiff is entitled to the share he claims. The Subordinate Judge, however, dismissed the suit of the plaintiff finding that the Defendant 1 or his vendors his been in possession of the shares claimed by the plaintiff since 1902 at least, and that the plaintiff had never been in possession of those shares.

On appeal the learned District Judge, agreeing with the Subordinate Judge as to the title of the plaintiff, found with regard to the present appellant, Defendant 1, that he was recorded in Register D for a considerably larger share than he was entitled to, and, after considering the question of limitation, and finding that the time taken in prosecuting his case before the Land Registration Department would be excluded, he decreed the plaintiff''s suit as against Defendant 1 and directed that 18 gundas out of the Defendant l''s share in village Bakarpur should be transferred to the plaintiff and 3 gundas of Defendant l''s share in Mirpur should be similarly transferred, while 11 gundas out of the share recorded in the name of the defendant''s grandfather should be recorded in the plaintiff''s name. The plaintiff was also declared to be entitled to be recorded for 8 annas 12 gundas out of the group entry relating to village Doberkothi.

The main question which arises in this second appeal is whether the decision of the learned District judge regarding limitation was correct. The learned advocate for the appellant does not attack the findings come to as to the amount of shares of the parties and in fact he could not as these are findings of fact.

Mr. Sivanandan Ray points out that, according to the findings, the plaintiff has never been in possession since February 1902 at least, when the entry of the defendant''s shares was made in the Land Registration Department Register D, that the shares are held by the co-sharers exclusively, and since the suits was not instituted till 30th July 1914 and the entry of the Defendant l''s shares was made in the Land Registration Department Register D in February 1902, more than 12 years have elapsed and the suit must be barred.

The Defendant 1 has been recorded separately for his share in the Land Registration Department, and, as shown by the learned District Judge, where the cosharers are found to have exclusive possession of a specific and stated share limitation may run against the other cosharers claiming that share in a suit. The learned District Judge has found that the time taken in prosecuting his case before the Land Registration Deputy Collector, and before the Commissioner and the Board of Revenue in appeal, that is to say, from 23rd of November 1912 to 7th of May 1914, should be excluded under the provisions of Section 14 Lim Act, 1908. That section runs as follows: "In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."

The question is whether the proceeding in the Land Registration Department can be called a civil proceeding and whether the Land Registration Deputy Collector can be held to be a Court for the purpose of the section; thirdly, whether the cause of action is the same in this suit as it was in the Land Registration Department, and whether it can be said that the cause is one which, from defect of jurisdiction or cause of a like nature, the Land Registration Deputy Collector was unable to entertain.

I have myself grave doubts on each of these points. I do not think that the term "civil proceeding" used in the section is meant to cover an application made under Sections 28 and 29 or Section 42, Land Registration Act, nor do I think that the Land Registration Deputy Collector could be called a "Court" for the purpose of deciding cases under those sections. Then again, though the cause of action is in both cases the record made in the Land Registration Register D, after the partition, the relief sought before the Deputy Collector was different from the relief sought here. Before the Deputy Collector the plaintiff merely asked that his share should be separately shown and he stated what he alleged that share was. Before this Court the plaintiff seeks to have his title declared and to be confirmed in possession, or in the alternative, to recover possession, It is difficult to say that the Land Registration Deputy Collector had no jurisdiction to order that the register should show the shares separately but it was found that really the question was one of title and therefore the Deputy Collector refused to deal with it. I do not think that it can be said that the Deputy Collector was unable to entertain the application be fore him from defect of jurisdiction or other cause of a like nature. The plaintiff really sought to have his title declared by the separate record of his shares in the Register D and the proper venue for obtaining the relief he really wanted was the civil Court. Instead of going to the civil Court he went to the Land Registration Department, and when the Deputy Collector had decided that the case was one in which title had to be decided, instead of at once coming to the civil Court, the plaintiff prosecuted his case in appeal before the revenue authorities. In my opinion Section 14, Lim. Act, will not save the suit from limitation.

The learned District Judge has relied on the case of Girjanath Roy Chowdhory v. Ram Narain Das (1893) 20 Cal 264, where the plaintiff was allowed u/s 14 to deduct the period during which he was bona fide seeking redress from the revenue authorities who had no jurisdiction to deal with the question raised by him, and the suit was held to be not barred by lapse of time. In that suit the question was very shortly dealt with, and I think is distinguishable from the present case.

Defendant No. 1 had bought shares in three villages from admitted cosharers in 1886, 1902 and 1905; he was recorded in Register D in 1902 with regard to the lands purchased in 1886 and 1902, and his vendor was recorded in 1902 in respect of the lands bought by the defendant in 1905, and the trial Court found that the defendant and his vendors had been in possession. The suit was instituted more than 12 years after February 1902, and in my opinion the learned Subordinate Judge was correct in finding that the suit was barred by limitation as against Defendant 1.

The learned advocate for the respondent raised an objection to the appeal on the ground that Defendant 1 had sold his interest in the patti in 1919 and therefore he had no right to appeal. I do not think that this contention can be upheld; for it is quite clear that it is due to the defendant''s vendees that his title to the shares should be supported and upheld. It seems that an application was made for substitution, but it was rejected by the Court.

I would therefore allow the appeal, set aside the decree of the learned District Judge, so far as it affects the shares which are the subject-matter of this appeal, and dismiss the suit as against Defendant 1. Each party will pay his own costs throughout.

Sen, J.

I agree.