Sheikh Latafat Hussain vs Kumar Kaliker Nand Singh

B.K. Mullick, J.—On the 10th June 1905 the 1st and 3rd party defendants made an objection before a Settlement Officer conducting a settlement under Chapter X of Act VIII of 1885, to the effect that the lands in suit, measuring an area of IS bighas, 3 cattahs 16 dhurs had been wrongly recorded as the lakhiraj estate of the plaintiffs. The objectors succeeded before the Settlement Officer, and on the 12th January 1906 a final record was published containing entries in accordance with the Settlement Officer''s decision. On the 11th January 1907 the suit out of which the present appeal arises was instituted before the Munsif of Purnea, for a declaration that the entries in the finally published record with regard to the lands in suit were incorrect. The suit was decreed by the Munsif, but was dismissed on appeal by the District Judge on the 30th November 1908. There was then a second appeal to the High Court of Calcutta, with the result that the case was remanded to the District Judge for a decision upon the merits. I have to explain here that the District Judge who disposed of the case on the 30th November 1908 was of opinion that no civil suit for a declaration, such as had been given to the plaintiffs by the Munsif, would lie and that the proper remedy of the plaintiffs was by way of an application u/s 106 of the Bengal Tenancy Act for the settlement of a dispute to the Revenue Officer. The High Court of Calcutta held that this position of the law had been misconceived by the learned Judge and that a suit in the Civil Court would lie to declare that the entries in the finally published record were incorrect. When the case went back to the District Judge on remand, the decree of the Munsif was confirmed. The learned District Judge found that in regard to 9 bighas 10 cottahs 16 dhurs of the land in suit the plaintiffs had established a title by purchase made in 1885, showing that this area was part of the lakhiraj estate of one Mr. Beaufort. As regards the remainder of the land the learned Judge found that the plaintiffs had been in adverse possession for more than 12 years and that they had, at the time that the finally published record of 1906 was published, acquired a complete title as against the defendants. Against this decree of the learned District Judge a second appeal was again preferred to the High Court. That appeal came before a learned Judge of this Court sitting alone for the hearing of second appeals and the learned Judge of this Court, disagreeing with the learned District Judge dismissed the whole suit on the ground that it was barred by limitation. It appears that an issue on the question of limitation was raised in the Court of the Munsif but there was no distinct finding upon it. In the Court of the District Judge who last heard the case it was raised somewhat faintly, and the learned Judge earns to the conclusion that as the suit had been brought within 12 years of the disposal of the objection case before the Settlement Officer in 1905 the suit was within time. The learned Judge of this Court, however, has gone upon a different ground and in order to consider his objection to the plaintiffs'' suit it is necessary to take it in two parts. With regard to that portion in respect of which the plaintiffs have established their title by purchase from the 4th party defendants, the learned Judge finds that in 1888 or 1889 a survey and settlement under Chapter X of the Bengal Tenancy Act as it then stood was made by a Revenue Officer and that in the course of that settlement the land in dispute was recorded as belonging to the Patni tenure of the first party defendants in Mouza Chandi Katwa and that it was in the actual possession of the 2nd party defendants as occupancy raiyats. In the opinion of the learned Judge of this Court the plaintiffs having failed to bring a suit to correct the entry in the finally published settlement record of 1888-89 within six years of publication, it is no longer competent to them to bring a suit for a declaration that the record of 1906 is wrong.

The contention is that as the prayer in the present suit substantially involves a correction of the record of 1888-89, the plaintiffs cannot be indirectly allowed to obtain a declaration which is barred by the law of six years'' limitation. Now this raises the question as to what is the precise scope of the present suit. The present suit does not in any way concern itself with the entry in the Record of Rights published in 1888-89. It in terms only seeks for a declaration that the record of 1905-6 is incorrect. Section 111A of the present Bengal Tenancy Act clearly confers the right to the plaintiffs to obtain a declaration in the terms of section 42 of the Specific Relief Act. Is there anything in the law which compels the plaintiffs to ask for a declaration in respect of the previous record before they can obtain the reliefs they now seek? The learned Vakil for the respondents before us has been unable to show any direct authority in support of his contention, but he has suggested that the case of Akbar Khan and Another Vs. Turaban, , is authority for the proposition that in the present case time began to run against the plaintiffs upon the publication of the first record. I have carefully examined this case and I can find nothing in it which supports the general proposition that where there are two consecutive finally published Records of Rights, it is incompetent to a party aggrieved by the second to ask for a declaration in respect of that second record without first displacing any prejudicial entries in the first record. On the contrary this case is authority for the proposition that a plaintiff seeking a declaration is entitled to sue upon each successive invasion of his right, and the learned Judges of the Allahabad Court cite with approval two other judgments of their Court recognising this principle, namely, Ilahi Bakhsh v. Harnam Singh A.W.N. (1898) 215 and Robert Skinner Vs. Shanker Lal, note. The same principle has been recognised in this Court in Brij Behari Singh and Others Vs. Sheo Sankar Jha and Others, and Ramji Ram v. Sadhu Saran Lal 41 Ind. Cas. 11; 2 P.L.J. 493. In each case it must be seen whether the invasion upon which the plaintiffs seek to base their cause of action was in fact an invasion or not. In Akbar Khan and Another Vs. Turaban, , above cited their Lordships of the Allahabad High Court dismissed the suit on the ground that where an adverse entry was made in 1895 in a settlement record and the plaintiff in 1903 failed to get that entry corrected by the Revenue Officer, such subsequent failure did not constitute a fresh invasion of his right. But that is not the case here. Here it is clear that in 1906 a fresh invasion of the plaintiffs'' right occurred. They may have had a number of reasons for not pursuing their remedies in respect of the previous entry. The entry did not create or extinguish any rights. It did not affect their title. It is found that they were in possession and there was no reason whatsoever why they should put the law in motion, for an owner in possession is not hound to sue upon every challenge to his rights. On the other hand in 1906 if they were of opinion that it was to their advantage to rebut the presumption created by the entry adverse to them, then although that entry in terms repeated the contents of a previous entry, there does not seem to be anything in the law which debars them from counting time from the date of the second entry. It is admitted that the suit is within the period of limitation under Article 120 if time began to run from the 12th January 1906. The case is not similar to Amir-ud-Din v. Saidur Rohman 35 Ind. Cas. 433; 1 P.L.J. 73, where it was held that a plaintiff cannot by changing the form of his suit count a fresh period of limitation if in fact the real object of his suit is to obtain a declaration such as is contemplated by section 111A of the Bengal Tenancy Act. That case has no bearing on the facts of the present ease. Therefore, if the plaintiffs'' title is not extinguished and if being in possession they were not called upon to bring a suit to declare their possession, then I see no reason why they should not be allowed to get a declaration that the Record of Rights of 1906 was incorrect. The learned Judge of this Court has relied upon the case of Beeves v. Butcher (1891) 2 Q.B. 509; 60 L.J.Q.B. 619; 65 L.T. 329; 39 W.R. 626. That case followed Hemp v. Garland (1848) 4 Q.B. 519; 3 G. & D. 402; 12 L.J.Q.B. 134; 7 Jur. 302; 114 E.R. 994; 62 R.R. 423. Both those cases were based upon an English Statute of Limitation in regard to the recovery of debts the payment of which had teen contracted for in installments. It was held that if the contract was that upon the failure to pay any installment the whole debt would become due, then if the creditor omitted to sue within the six years allowed by Statute from the date of the first default his remedy to recover not only the installment but also the whole debt would be barred. Article 75 of the present Indian Limitation Act has made a slight change, but it also recognises the principle that omission to sue for the first default within the statutory period would ordinarily render the creditor incompetent to recover the whole debt. That principle has no hearing upon the case before us. Here time began to run against the plaintiffs upon the publication of each record, that is to say, upon each invasion of their right, and they do not seek to violate the principle that time must run from the earliest moment. So far, therefore, as that half of the land in suit which has been found to be situated within the plaintiffs'' purchased lakhiraj estate is concerned, the suit is within time and the decision of Mr. Justice Atkinson is, in my opinion, wrong.

There remains the other half of the property. The position in regard to this is that the District Judge finds that the plaintiffs obtained possession in 1885 and that although the land is situated within the revenue-paying Mauza of the 1st party defendants, the plaintiffs have by adverse possession acquired a complete title. It is contended by the defendants that as that title matured not later than 1897, the plaintiffs were bound to bring a suit within six years of 1897 in order to obtain a declaration that they had acquired a prescriptive title by adverse possession. It is, therefore, urged that as the present suit was brought in 1907 it is out of time. Now it is quite clear that the plaintiffs were not bound to bring any suit at all for a declaration that they had acquired a prescriptive title. Their suit in 1907 was for the purpose of dispelling the cloud which threatened their title in the shape of the entry in the Record of Rights of 1906. I see no reason why they should not be entitled to a declaration u/s 42 of the Specific Relief Act; for being in possession all that they could demand was a mere declaration. The learned Vakil for the respondents is unable to cite any authority which requires every person who has acquired a title by adverse possession to bring a suit for a declaration that he has acquired such title. So far as the entry of 1888-1889 is concerned, the plaintiffs had not at that time perfected their title and consequently the entry, so far as it showed the title of the 1st party defendants, was correct and the plaintiffs were not competent at that time to bring any suit for a declaration regarding the correctness of that entry. Here the cause of action in respect of the entry in the Record of Rights clearly arose when the record was finally published in 1906. The result, therefore, is that with regard also to this second half of the land in suit the bar of limitation does not apply and the plaintiffs, having brought their suit within six years of the publication of the Record of Rights of 1906, are well within time. The result is that the judgment of the learned Judge of this Court will be set aside and the appeal decreed with costs in all Courts.

Miller, C.J.

I agree.