CHOWA MAHTO Vs. JNANI RAM

JUDGEMENT

(1.) This appeal has been tiled by the defendants, except Mathura Prasad Mahtha, who has been made a respondent in this appeal. It arises out of a suit instituted by the plaintiff on the 28th March. 1958 in the Court of the Subordinate Judge, Hazaribagh, for a declaration that the lands of Khata No. 19 except plot No. 347, described in schedule C of the plaint, were raiyati lands of the plaintiff in which the defendants had no right whatsoever, The plaintiff also prayed for recovery of possession and other incidental reliefs, in view of the fact that an adverse order against the plaintiff had been passed under Section 145 of the Code of Criminal Procedure. This suit was dismissed by the trial Court, but on appeal, it has been decreed. I do not think it will be necessary to give the facts in detail. in view of the questions of law raised by the learned counsel for the appellants and I will state only the facts which need be mentioned.

(2.) One Gokul Mahto was recorded in the Khatian with respect to Khata No. 19 as a raiyat. This land was within Khewal No. 5 which had fallen to the share of Harichand Mahto. It was alleged that Gokul had surrendered his land to Harichand on the 24th September, 1924. It was said that on the 29th September, 1924 the land in suit was settled by Harichand to the plaintiff in the name of Gokul. The Putta has been brought on the record and marked as Exhibit 4. This settlement is said to be the plaintiff's title to the disputed property. But, it is alleged that on the 25th September, 1924, Harichand had executed a usufructuary mortgage of Khewat No. 5, which includes Khata No. 19, to Nanda, Lochan and others. Then, it is alleged that on the 26th June, 1929 Jago and Khemlal, sons of Harichand, had executed a Kabulival in favour of the usufructuary mortgagees. Thereafter, it was alleged that Harichand had sold the disputed land to Chowa, defendant No. 1 and to Musan on the 27th July. 1935. It was alleged that Chowa had redeemed the mortgage dated the 25th September, 1924 on the same day, and this is the contested title of the defendants. That is to say the plaintiff was relying on the settlement dated the 29th September. 1924, and the defendants were relying on the validity of the usufructuary mortgage dated the 25th September, 1924 given by Harichand Mahto There was a proceeding under Section 145 of the Code of Criminal Procedure between the parties in which an adverse order was passed against the plaintiff by a Magistrate on the 26th November, 1951. This order was affirmed by the Court of Session on the 7th July, 1952. Thereafter the present plaintiff instituted the first suit on the 31st March, 1953 in the Court of a Munsif, valuing the suit at Rs. 3200, inclusive of the value of the land and the valuation of the other incidental reliefs claimed. There was a contest in the trial court as to the valuation of the suit and the learned Munsif held, on a computation from the income, that the net annual income from the suit land would be Rs. 1260. Therefore, the proper valuation of the suit land was held to be Rs. 12660 by taking ten years' purchase. As the value of the suit exceeded the pecuniary jurisdiction of the Court, the plaint was ordered to be returned for presentation in the proper Court. There was an appeal by the plaintiff before the Court of appeal below and the learned District Judge disagreed with the conclusion of the trial Court He held that the net annual income would be Rs. 432, and by taking 20 years' purchase, the valuation of the land would be Rs. 8640. The plaintiff then came up to this Court in civil revision, which was numbered as Civil Revision No. 369 of 1956. By judgment and order dated the 13th March, 1958, this Court again varied the valuation of the land. This Court, on hearing the parties, held that the valuation should have been taken at 12 years' purchase and the application was, therefore, allowed in part. It appears that the plaint was returned on the 25th March, 1958. The same plaint was presented in the Court of the Subordinate Judge, Hazaribagh, on the 28th March, 1958. A separate application was filed by the plaintiff on the same day stating that the plaintiff had filed the suit originally in the Court of the Musif. Hazaribagh and on the defendants' objection as to the valuation, the valuation of disputed land had been finally fixed by the High Court at Rs. 5184. The prayer was that the valuation given in the original plaint, re-presented before the learned Subordinate Judge may be permitted to be corrected. Further prayer was that the total valuation of the suit would now be Rs. 6504 and permission was sought for inserting this amount in the plaint Some other incidental amendments were also prayed for. These amendments were allowed by the Court, by order dated the 29th April, 1958. Thus the suit proceeded. In the written statement filed by the defendants references were made to the refiling of the plaint in the Court of the Subordinate Judge. Hazaribagh and to the amendments made in the plaint. Paragraphs 3, 4 and 5 of the written statement ran as follows :--

(3.) On the allegations of the parties, various issues were framed by the trial Court, including issue No. 2, as to whether the suit was barred by limitation or not. This matter was considered by the trial court in Paragraphs 8 and 9 of its judgment. The contention raised on behalf of the defendants regarding limitation, on the ground that the Magistrate's order was dated the 26th November, 1951 and the filing of the present suit in the Court of the Subordinate Judge after the return of the plaint, was dealt with by learned Additional Subordinate Judge and he stated that there was no material before the Court and there was not even an allegation that the plaintiff was wanting in bona fides and. therefore, the suit cannot be held to be barred by limitation. With respect to the amendment of the plaint challenged by the defendants, it was held that ail the amendments had been made by the leave of the Court after the plaint had been returned by the Munsif at Hazaribagh.