SECY OF STATE Vs. DHIRENDRA NATH ROY

JUDGEMENT

(1.) The suit out of which these two appeals arise was brought by the plaintiffs for recovery of possession of certain lands described in Schedule Ga to the plaint, as appertaining to five Mauzas of their permanently settled estates Kismatpara, Majpara, Purbapara, Tarat Kandi and Srirampur. The principal defendant to the suit, viz., the Maharaja of Natore, is the proprietor of two Mauzas, Deara Char Tarapur and Deara Char Bhowanipur, situated somewhere to the north of the five Mauzas of the plaintiffs. The predecessors of defendant 1 took settlement of char Tarapur some time in the year 1868 and of Char Bhowanipur some time in the year 1869.

(2.) It appears that after the institution of the suit one of the pro forma defendants was transferred to the category of plaintiffs. He is the Maharaja of Kasim-bazar and it is said that his interest in the five Mauzas is four annas. The defendant did not dispute the title of the plaintiffs to the five Mauzas. The only question in dispute was as to whether the lands in suit appertained to the five Mauzas as depicted in the Revenue Survey Map of 1854-1855. The suit was decreed originally partially by the Subordinate Judge on 30 May 1921. Against that decision an appeal was taken to this Court and the decree of the Court below, in so far as it dismissed the plaintiffs suit, with respect to lands-other than those claimed by the defendants as part of their Deara Char Bhowanipur, on the ground that the plaintiffs had no cause of action, was set aside by this Court and a decree in favour of the plaintiffs was given declaring their title to such lands. The case however in so far as it related to the other lands, that is, the lands which are claimed by the defendants as a part of Deara Char Bhowanipur, was remanded to the Court below, in order that the Secretary of State might be made a party to the suit, after service of notice on him Under Section 80, Civil P.C, and the Court was directed to consider the questions raised in the case including that; of adverse possession of the defendants and the right of the plaintiffs to obtain khas possession as against the tenants defendants and then dispose of the case accordingly. The case went back on remand and the Subordinate Judge has now decreed the suit in respect of the lands claimed by defendant 1 as appertaining to Deara Char Bhowanipur which fall within plaintiffs Revenue Survey Mauzas Purbapara, Tarat Kandi and Srirampur and also for the lands which fall outside the Deara Char Bhowanipur but are within the Revenue Survey boundaries of Tarat Kandi and Srirampur. The plaintiffs claim for khas possession as-against the tenants defendants was dismissed and it was held that they were not entitled to get khas possession but possession through tenants defendants. The Secretary of State was not held liable for any cost.

(3.) Against this decree of the Subordinate Judge dated 10 October 1928 two appeals have been preferred, one by the Secretary of State for India in Council, the number of the appeal being 77 of 1929 and the, other by defendant 1, the number of the said appeal being 84 of 1929. On behalf of the Secretary of State, the learned Senior Government Pleader has raised substantially two question: (1) that the notice Under Section 80, Civil P.C , was defective and consequently his argument was that the suit should be dismissed as against the Secretary of State; and (2) that the claim as against the Secretary of State was barred by the Statute of Limitation. So far as the first ground, viz., the defect in the notice is concerned it is said that the notice is defective as it does not state the cause of action as against the Secretary of State and secondly, as it does not seek for any relief against the Secretary of State. It appears however that the notice which is to be found at p. 100 of the paper-book, in Appeal No. 77 of 1929, states that the Secretary of State will be made a defendant in the suit in respect of the cause of action and the reliefs which are fully described in the annexed copy of the plaint which forms part of this notice. In the plaint the plaintiffs recite that they claim the disputed lands as a part of their permanently settled estates and they allege that the cause of action in the suit arose when the plaintiffs were dispossessed of their lands some time in the year 1911 by defendant 1. So far as they seek a declaration of their title to the lands, which is now the matter in controversy in this appeal, they certainly had a cause of action as against the Secretary of State. The notice may be defective in form but we are of opinion that there was substantial compliance with the provisions of Section 80 of the Code. This ground therefore which is taken on behalf of the Secretary of State must fail.