U HEDLOT KHASIA Vs. KARAN KHASIANI

JUDGEMENT

(1.) The subject-matter of the litigation which has given rise to this appeal is a tract of land whereof settlement was obtained by one U. Timon from the Government on the 21st October 1884, under a qubuliat executed for a term of ten years. The grantee died shortly after, and left behind him a brother U. Hedlot and two sisters Ka Sengai and Ka Laban. Immediately after his death, his brother, in 1885, got his own came entered in the qubuliat as his successor-in- interest and apparently continued in possession thereafter. U. Hedlot transferred a portion of his interest in the disputed land to some of the defendants on the 22nd March 1887. On the 13th November 1895, the two sisters of U. Timon commenced an action for declaration of title to the disputed land and for recovery of possession. Their case in substance was, that they were Khasias and that under the customary rules of inheritance prevalent amongst them, sisters were entitled to succeed in preference to brothers. The defendants to the suit were U. Hedlot and six other persons who claimed to have derived an interest in the disputed land from him. Apart from objections in bar, one of which related to the jurisdiction of the Court, the claim was resisted substantially by the second and third defendants on the ground that the plaintiffs were not entitled to any interest in the land as it had been acquired by U. Hedlot. The other defendants did not enter appearance. The Court first tried the objection of jurisdiction based upon the value of the. subject-matter of the litigation, and came to the conclusion that the value of the property was within the limits of its pecuniary jurisdiction. The case was then tried on the merits, and a decree made in favour of the plaintiffs on the 18th April 1896. Upon appeal that decree was affirmed by the Subordinate Judge on the 21st September 1897 and a second appeal to this Court was dismissed on the 20th April 1900. Subsequently, the defendants other than the second and third defendants applied to have the ex parte decree made against them discharged. That application was successful and the suit was revived in so far as they were concerned. They resisted the claim on the ground that the Court had no jurisdiction to entertain the suit because the pecuniary value of the subject-matter of the land in dispute exceeded the limits of the pecuniary jurisdiction of the Court. This contention was successful, and the result was that on the 15th January 1905, the Court returned the plaint for presentation to the Court of Subordinate Judge, the plaint was duly presented to that officer on the day following. The case was then tried on the merits. The substantive defence to the claim was two fold; namely, first, that the plaintiffs did not acquire any valid interest in the disputed property, because upon the death of U. Timon there was no interest left which could pass to them by succession; and secondly, that if the interest of U. Timon was transmissible by inheritance, the plaintiffs were not the heiresses of their brother. The Court of first instance decided in favour of the plaintiffs on the 1st June 1908 and that decision was affirmed on appeal by the District Judge on the 24th March 1909. Two of the defendants, the fifth and the seventh, have now appealed to this Court and on their behalf the decision of the District Judge has been assailed on four grounds namely, first, that the suit has not been properly framed, because after the plaint had been returned for presentation to the proper Court, the pleadings ought to have been amended with reference to the circumstances as they stood on the 16th January 1906; secondly, that the suit is barred by limitation; thirdly, that the plaintiffs have acquired no title to the disputed property, because upon the death of U. Timon there was no interest left to be transmitted to them; and fourthly, that if the interest of U. Timon was transmissible, the plaintiffs arts not the heirs of their brother. These arguments have been strenuously contested by the respondents and a preliminary point has been raised on their behalf that the ex parte decree was improperly set aside, inasmuch as after the decree of the original Court had been affirmed on appeal by the Subordinate Judge and on second appeal by this Court, it was not competent to the primary Court to discharge that decree and direct a re- trial of the suit. We must first examine the validity of the objection taken on behalf of the respondents.

(2.) It appears from an examination of the record that the decree was originally made upon contest as against the second and third defendants, and was made ex parte, as against the others. The second and third defendants alone appealed against the adverse decision of the Subordinate Judge. To that appeal, the only respondents were the successful plaintiffs. The Sub-Judge affirmed the decision of the original Court. A second appeal was presented to this Court by the second and third defendants, and, as in the Court of Appeal below, the only respondents in this Court were the plaintiffs. The decision of the Court of first instance, which has been affirmed on appeal, was confirmed by this Court. Upon these facts, the learned Vakil for the respondents has contended, upon the authority of the decision in Dhonai Sardar v. Tarak Nath Chowdhuri 12 C.L.J. 53 : 5 Ind. Cas. 525 that the decree of the original Court was superseded by the decree of the Appellate Court, and that, consequently, after the appeal had been decided, it was not competent to the primary Court to set aside the ex parte decree even at the instance of persons against whom the decree had been made ex parte and who had not been made parties to the appeal preferred at the instance of the contesting defendants. It may be conceded that the contention of the respondents is apparently supported by the decision upon which reliance is placed, but we are of opinion that this position cannot be maintained on principle. No doubt, when a decree is attached by way of appeal to a superior Court, if the decision of the Court of Appeal affirms that of the Court of first instance, the original decree becomes merged in the decree of the Court of Appeal. But the application of this general principle may be modified by special circumstances. Here, as we have already explained, the decree of the primary Court was challenged on behalf of the contesting defendants. They assailed that decree only in so far as they themselves were concerned and this is conclusively evidenced by the circumstance that they did not join the other defendants as parties to the appeal. When, therefore, their appeal was dismissed and the decree of the Court of first instance was affirmed, it must be taken that the decree of the primary Court was merged in the decree of the Appellate Court only in so far as the original decree affected the two contesting defendants. In so far as that decree affected the other defendants, who had not entered appearance, the Court of Appeal was not invited to consider the matter and to pronounce any judicial opinion thereupon. A similar observation applies to the decree made by this Court. Consequently, the view cannot be maintained that merely because the appeal of the two contesting defendants was unsuccessful, the other defendants were deprived of their remedy, available under Section 108, to have the ex parte decree made against them discharged on proper grounds. The view we take is in accordance with that taken by this Court in the case of Indu Meah v. Dar Baksh Bhuiyan 14 C.L.J. 42 : 15 C.W.N. 798 : 10 Ind. Cas. 275. Much reliance was placed upon the decision in Kumud Nath Roy Chowdhry v. Jatindra Nath Chowdhry 13 C.L.J. 221 : 38 C. 394 : 9 Ind. Cas. 189 : 15 C.W.N. 399 but that case is clearly distinguishable, because there the application to set aside the ex parte decree was made during the pendency of an appeal. Consequently, the question did not arise for consideration, whether it would have been competent to the primary Court to set aside the ex parte decree upon the invitation of the defendants who had not entered appearance, after the appeal preferred by the contesting defendants had been dismissed. We are clearly of opinion that the preliminary point urged by the respondents cannot be supported. We are further of opinion that it is too late for them to take this objection. The suit has been revived and, re- tried. If the plaintiffs were of opinion that the ex parte decree ought not to have been set aside by the primary Court, they ought to have applied to this Court to discharge that order as made without jurisdiction. The objection which the plaintiffs, as respondents, now seek to urge, is not taken, with a view to support the decree in their favour; if it is allowed to prevail, the decree, though in their favour, must be discharged as made without jurisdiction. The preliminary objection is, therefore, overruled, and we proceed to consider the points urged by the defendants in support of their appeal.

(3.) The first point taken by the appellants is that the suit has not been properly constituted because the plaint, as it now stands, seeks relief on the basis of events as they happened before the 13th November 1893 (the date of the original presentation of the plaint) and all intermediate transactions between that date and the date of the presentation of the plaint in the Court of the Subordinate Judge have been ignored. In support of this proposition reliance has been placed upon Section 57 of the Code of Civil Procedure of 1882 and Section 14 of the Indian Limitation Act of 1877. Section 57 of the Code of 1882 provides that the plaint shall be returned to be presented to the proper Court if a suit has been instituted in a Court whose grade is lower or higher than that of the Court competent to try it, where such Court exists or where no option as to the selection of the Court is allowed by law. Section 14 of the Indian Limitation Act provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence in 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 presented in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. It has been argued on behalf of the appellants, that the combined effect of these two Sections is that when the plaint which has been returned is presented in a Court of competent jurisdiction, the suit must be taken to be instituted on the date of such presentation. In our opinion, this contention is well founded and is not opposed to the decision in Huri Mohun v. Naimuddin 20 C. 41 which was a case of amendment and not of return of plaint Greesh Chunder v. Pran Kishen 7 W.R. 157; Ram Coomar v. Dwarkanath 5 W.R. 207 ; Sham Chand v. Kally Kanth (1863) 2 Hay. 314; Husrutoollah v. Aboo Mahomed 6 W.R. 39. In fact if the contrary view were adopted, the inference would follow that the provisions of Section 14 of the Indian Limitation Act were superfluous: It would have been needless to formulate the rule embodied in Section 14, unless the theory were adopted that the suit was instituted only when the plaint was presented in the Court of competent jurisdiction. Consequently, the view may well be maintained that the plaint in this case ought to have been amended and the plaintiffs required to base their claim to relief on the footing of circumstances as they stood on the 16th January 1906. We are clearly of opinion, however, that the suit ought not to fail on this ground. No such objection was taken in the Court of first instance after the plaint had been presented. If the objection had been taken, the plaintiffs might easily have amended their allegations. It is further plain that the defendants have not, been in any manner prejudiced by reason of the omission of the plaintiffs to amend the plaint. The events upon which the defendants rely have all been investigated by the Courts below. The most important of these, is the settlement with them by the Government after the institution of the suit in 1395. The defendants have, as a matter of fact, throughout contended that the plaintiffs are entitled to relief, if any, on the footing that the defendants are now settlement-holders for a term of 15 years under a lease granted to them on the 1st April 1898. The defendants will be amply protected, as we propose to take this fact into account, and determine thereon the relative rights and liabilities of the parties, this is in accord with the principle that the Court may, for the sake of justice, take into consideration changes in the title pendente lite; Ram Ratan v. Mohant Sohu 6 C.L.J. 74 : 11 C.W.N. 732 and Ramyad v. Bindeswari 6 C.L.J. 102. The first contention of the appellants, though technically correct, must consequently be overruled.