H H MAHARAJA OR COOCH BEHAR; ABDUL MASID BASUNIA Vs. RAJA MAHENDRA RANJAN RAI CHAUDHURI; RAJA MAHENDRA RANJAN RAI CHAUDHURI

JUDGEMENT

(1.) The subjcat matters of the litigations which have led up to these two appeals are two tracts of land in the District of Jalpaiguri. The rival claimants are the Roja of Kakina and the Maharaja of Cooch-Behar. The lands, which have been formed by the recession of the river Shaniajan, are claimed by the former as included in his village Sibram and by the latter as comprised in his village Jamgram. The first suit was instituted in the Court of the Munsif of Jalpaiuari and the second in the Court of the Subordinate Judge of the same District; but the former suit was transferred, for the sake of convenience, to the Court of the Subordinate Judge, and the two suits were tried together on the same evidence. The suits were ultimately decreed in part on the basis of a report made by a Civil Court Amin. The decrees made by the Subordinate Judge have been assailed in this appeal, substantially on four grounds, namely, first, that the suits were barred by the three years rule of limitation under Articles 46 and 47 of the Schedule to the Indian Limitation Act; secondly, that the trial of the suit instituted in the Court of the Subordinate Judge is barred by the provisions of Order II, Rule 2 (2) of the Civil Procedure Code; thirdly, that the boundary between the two villages has not been correctly ascertained; and fourthly, that the defendants have acquired a statutory title by adverse possession for more than twelve years.

(2.) In support of the first ground, reliance has been planed as well upon Art. 46 as upon Art. 47. Art. 46 provides that a suit by a party bound by such award, that is, an award mentioned in Art. 45, to recover any property comprised therein must be instituted within three years from the date of the final award or order. The awards mentioned in Art. 45 are awards under the Bengal Land Revenue Settlement Regulation, 1822, the Bengal Land Revenue Settlement Regulation, 1825 and the Bengal Land Revenue Regulation, 1833. It is not disputed that in the cases before us there is no award under any of three Regulations mentioned. What is set up as a bar is an order under Section 41 of the Bengal Survey. Act, 1875, made on the 10 June 1912 by an Assistant Superintendent of Survey. That order is of no assistance to the appellants for two reasons. In the first place, the order is not an award under any of the three Regulations mentioned. The nature of a possessory order under Section 34 of Regulation VII of 1822 was explained by the Judicial Committee in Jowala Buksh v. Dharum Singh 10 M. I. A. 511 at p. 534 : 2 Sar. P. C. J. 189 : 19 E. R. 1067 and bejah Sahib Perhlad Sein V/s. Rajendra Kishore singh 12 M. I. A. 292 at p. 334 : 2 Suth. P. C. J. 225 at p. 23 : 2 Sar. P. C. J. 430 : 12 W. R. P. C. 6 at p. 18 : 20 E. R. 349 and need not be investigated here. Let it be conceded that a possessory order under Section 40 (1) of the Bengal Survey Act, 1875, bears an analogy to a decision under Section 34 of Regulation VII of 1822; it would still be contrary to sound (sic)aanons of construction to enlarge the scope of the provisions of a Statute of Limitations, by importing into them words which are not to be found there. An attempt of this description was made in the cases of Ibrahim Ali V/s. Hadi Ali A. W. N. (1881) 15, Sheo Das V/s. Bondhu A. W. N. (1881) 91 and Zamulabdin V/s. Durga Dai A. W. N. (1882) 131, when it was argued that an order or award under the N. W. P. Land Revenue Act, 1873, which was similar in scope to the Regulations, attracted the operation of Art. 4(sic), even though that Statute was not one of the three Regulations expressly mentioned. This contention was rightly overruled, for extension by analogy is clearly not permissible in such a case. A similar view was adopted in Oodoy Singh V/s. Paluck Singh 16 W. R. 271 where the three years rule was attempted to be made applicable to an order of a Collector in partition proceedings. The decision of the Judicial Committee in Rojah Sahib Perhlad Sein V/s. Rojender Kishore Sing (2) doss not militate against this view, as the order in that case was in essence made under Regulation IX of 1825. In the second place, as pointed out in Bubu kasturi Singh V/s. Rajkumar Babu Bissun Pragas Narain Singh 8 C. W. N. 876, a decision under the Bengal Survey Act, relating to a boundary dispute, was conclusive as to possession only, and would not bar a suit for recovery of possession based on title. To the same effect is the decision in Bisseswari Koer V/s. Ram Protap Singh 4 Ind. Cas. 517 : 14 C. W. N. 366. A Similar view had previously been adopted in Mozuffur Ali V/s. Grish Chunder Doss 10 W. R. 71 : 1 B. L. R. A. C. J. 25 : 1 Ind. Dec. (n. s.) 137 where the three years rule was considered inapplicable to a suit for recovery of possession upon establishment of title. We are of opinion that these suits cannot be treated as barred by limitation under Art. 46, merely because when they were instituted more than three years had elapsed from the date of the order under Section 41 of the Bengal Survey Act. That order was, until reversed or modified by competent authority, the force of an order of a Civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector. Art. 47 is equally of no avail to the appellants. That Art. provides that a suit by any person bound by an order respecting the possession of immoveable property made under the Criminal Procedure Code, 1898, or by any one claiming under such person, to recover the property comprised in such order, must be instituted within three years from the date of the final order in the case. In respect of the land comprised in the first suit, an order under Section 145 of the Criminal Procedure Code was made on the 15 May 1912. The plaint in that suit was lodged in Court on the i4ih May 1915, as was found on an examination of the original document. There was some question as to the verification which had been made by the recognised agent; of the Raja of Kakina, the first plaintiff, on the 12 May 1915. On the 17 May, an order was recorded that the agent be permitted to sign and verify the plaint which was thereupon directed to be registered. It is obvious that the suit must be deemed to have been instituted on the date when the plaint was filed in Court and not on the date when it was ordered to be registered. There was no defeat in the verification; even if there had been a defeat, the Court could allow an amendment at any stage; such amendment would not have made the suit open to objection on the ground of limitation: Rojit Ram V/s. Katesar Nath 18 A. 396; A. W. N. (1896) 102 : 8 Ind. Dec. (n. s.) 971; Fateh Chand V/s. Mansab Rai 20 A. 442; A. W. N. (1898) 110 : 9 Ind. Dec. (n. s.) 643; Bisheshar Nath V/s. Emperor 44 Ind. Cas. 28 : 40 A. 147 : 16 A. L. J. 64 : 19 Cr. L. J. 865, Basdeo V/s. John Smidt 22 A. 55; A. W. N. (1899) 172 : 9 Ind. Dec. (n. s.) 1068 Mohni Mohun Das V/s. Bungsi Buddan Saha Das 17 C. 580 : 5 Sar. P. C. J. 498 : 8 Ind. Dec. (n. s.) 926. As regards the second suit which was instituted in the 24 February 1916, the order under Section 145, Criminal Procedure Code, in respect of the land comprised therein, wa3 made on the 2 June, 1913. Consequently both the suits fulfil the requirements of Art. 47, if that Art. be assumed to be applicable. The objection of limitation consequently proves untenable in both its branches.

(3.) In support of the second ground, reliance has been placed upon Order II, Rule 2, Civil Procedure Code. That rule provides as follows: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action-but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.