SHAIKH LATAFAT HOSSAIN Vs. KUMAR KAMLANAND SINGH

JUDGEMENT

(1.) THIS is an appeal on behalf of the plaintiffs in a suit for declaration that the disputed lands form their milik lakheraj and are neither chit mal lands situated within the zemindary of the first party defendants nor included in the tenancy of the second and third party defendants. There was a subsidiary prayer in the plaint for declaration that certain entries in the Record of Rights were erroneous. In the Court of first instance, no objection was taken to the competency of the Civil Court to entertain the suit; it was tried out on the merits and decreed in favour of the plaintiffs. Upon appeal, the District Judge has dismissed the suit on the authority of the decision in Jogendra Nath v. Krishna Promoda Dassi 12 C.W.N. 1032 : 35 C.1013 : 8 C.L.J. 322 though he has expressed an opinion that he agreed with the Court of first instance as to the effect of the evidence of the surveyor and the proof of adverse possession for much more than twelve years by the plaintiffs. In the present appeal, it has been argued for the plaintiffs that the suit is maintainable, because it is in essence a suit for declaration of title to immoveable property. In our opinion, this contention is well founded and must prevail. That a suit of this description is maintainable is clear from the decisions in Pandab Dowari v. Ananda Kishun 14 C.W.N. 897 : 7 Ind. Cas. 102 : 12 C.L.J. 195. and Golab Misser v. Kalanand Singh 14 C.W.N. 884 : 6 Ind. Cas. 217 : 12 C.L.J. 107. It was explained in the case of Mukti Nath Thakur v. Maharaja rameshur Singh 15 C.W.N. 57 : 7 Ind. Cas. 340. that the case of Jogendra Nath v. Krishna Promada Dassi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322. cannot be treated as an authority for the broad proposition that a suit for declaration of title to immoveable property was not maintainable in the Civil Court because a subsidiary relief was sought by way of a declaration that certain entries in the Record of Rights were erroneous. We are of opinion that the case before us is completely covered by the later decisions and does not fall within the rule recognized in Jogendra Nath v. Krishna Promoda Dassi 12 C.W.N. 1032 : 35 C. 1013 : 8 C.L.J. 322 even if it be assumed that that case was correctly decided.

(2.) THE result is that this appeal is allowed, the decree of the District Judge set aside, and the case remanded to him in order that the appeal may be re-heard on the merits. THE appellants are entitled to their costs both. here and in the Court of Appeal below. Under Section 13 of the Court Fees Act, we direct that the Court-fees paid on the memorandum of appeal to this Court be refunded to the appellants.