ATA HUSAIN Vs. MTHUKAM DEI

JUDGEMENT

(1.) These two appeals arise out of suits in which the plaintiffs sought possession over certain property. The two sets of plaintiffs were the sons respectively of Ghulam Husain and Ala Din, two brothers. Their allegation was that Mt. Bhagirati and Amar Singh executed a deed of mortgage in favour of Misri Lal in the year 1914 and that Misri Lal instituted a suit on the basis of this mortgage and ultimately purchased certain property in execution of a decree. They said that the properties mentioned in Schedule 1 and 2 of the plaint were in fact sold to Misri Lal but that the property mentioned in Schedule 3 was not included in the mortgage or decree or certificate of sale and that Misri Lal wrongly obtained an order of mutation by which it was recorded in the khewat as being in his possession as proprietor. It appears that Misri Lal after obtaining mutation instituted a suit for partition in the year 1929. The plaintiffs or their predecessors in interest raised an objection that this particular property was wrongly recorded in the register as the property of Misri Lal. The revenue Court issued a direction under Section 111, Land Revenue Act, that the objectors should institute a suit in the civil Court within a period of three months to establish their title. This order was passed on 9 November 1929. A suit was instituted in pursuance of this order within the requisite period but it was withdrawn on 3 December 1932 with permission to institute a fresh suit. The plaintiffs waited for a number of years and then filed these two suits on 26 January 1938 and 2 February, 1938, respectively. These suits were suits not only for a declaration that the plaintiffs were the owners of these properties but suits for possession, the prayer for possession being introduced, I am told by learned Counsel, because there was or was supposed to be some decision that a person whose name is not entered in the register of proprietors was to be deemed to be out of possession of the property. The trial Court passed decrees in favour of the plaintiffs.

(2.) The learned Judge of the lower appellate Court reversed the decision of the trial Court and dismissed both suits. The learned Judge held that the suits, if based on the order of the revenue Court dated 9 November 1929, were barred by limitation and if they were not based on that order, they were not maintainable. The learned Judge pointed out that the revenue Court would be bound to ignore a decree which was based upon a suit instituted more than three months after its order and consequently that a declaration contained in such a decree would be a mere empty declaration which no Court in its discretion should pass. That was what he meant by saying that the suits were not maintainable if they were not based on the order of the revenue Court. As for the question of limitation, his point was that the suits should have been instituted within three months of the order of the revenue Court. He was aware of a series of decisions which have been mentioned in Sumar Chand V/s. Mt. Mukhtari ( 40) 27 A. I. R. 1940 All. 147. These decisions lay down a rule that a person who has been referred to the civil Court by a revenue Court under the provisions of Section 111, Land Revenue Act, must institute a suit within a period of three months but if he does so and then withdraws the suit with permission to institute a fresh suit, the fresh suit will not be barred if it is instituted more than three months after the order of the revenue Court was passed. The learned Judge, however, examined these decisions and found that in every case a fresh suit had been instituted within a short period after the original suit had been withdrawn and he therefore evolved a rule that the fresh suit must be instituted within a period of three months from the date when the original suit was withdrawn. There is no justification at all for any such rule. The learned Judge has relied upon Ram Nandan Rai V/s. Tileshar rai ( 37) 24 A.I.R. All. 764. In that case the original revenue Court passed an order referring a party to the civil Court under Section 111, Land Revenue Act, but that order was set aside in appeal. It was restored again in second appeal by the Commissioner and the Commissioner's order was maintained by the Board of Revenue.

(3.) By the time the order of the Board of Revenue was passed the original period of three months had long ago elapsed. The learned Judge of this Court who decided that case came to the conclusion that the period of three months must run from the date of the final order of the Board of Revenue. He considered that that was the order which referred the party finally to the civil Court and that the party had to apply within a period of three months from that order. This decision is no justification for a rule that a person who withdraws his suit with permission to institute a fresh suit must institute that suit within three months of the date of withdrawal. Learned Counsel for the respondents urges that the decisions of this Court which were accepted in Sumar Chand V/s. Mt. Mukhtari ( 40) 27 A. I. R. 1940 All. 147 as laying down the rule of law which should be followed are based upon the principle that a suit instituted in pursuance of a permission to withdraw a suit and institute a new one is to be deemed to be in continuation of the previous suit and that it cannot be in continuation unless it is filed within a reasonable period after the original withdrawal. It seems to me that it would be impossible in practice to enforce a rule by which the period of limitation would depend upon each person's idea of what was reasonable.