SHAIKH MUHAMMAD Vs. SHAIKH QADIR BAKSH

JUDGEMENT

(1.) THIS, appeal arises out of certain proceedings connected with a partition case in the Revenue Courts. The plaintiff claimed to be entitled to, and also to be in possession of,a fractional share which stood recorded in the name of other co- sharers. He brought his claim before the Assistant "Collector conducting the partition and eventually, on the 19th of July Will, under an order passed, by the Commissioner in appeal he was required to institute within three months a suit in: a Civil Court for the determination, of the question- in dispute between himself and the other co-sharers. He did institute-a suit within three months as required. Eventually he presented an application to be permitted to withdraw that suit with liberty to bring a fresh one on the same cause of action under the provisions of Order XXIII, Rule 1 Civil Procedure Code, and he received such permission, the order under which the suit originally instituted was withdrawn being, dated the 20th, of May 1912, On the day following,, namely,; on the 21st of May 1912 the present suit was instituted. The. relief sought was a declaration that the plaintiff is in proprietary possession of. a certain specified share or in. the alternative, if it were found that the plaintiff was not in possession, he sought a decree for recovery of possession;. The first Court framed five issues and decided them all. It held that the plaintiff had, proved his title and his possession also that his suit was not barred by limitation,,, that is to say, that he was within time under the appropriate Article or Articles of the Indian Limitation Act. It dismissed, the suit, however,, upon a somewhat curious finding, namely, that by reason of section, 233 (7c) of, the United Province Land Revenue Act (Local Act III of 1901) a suit of this nature,, which related to a partition or union of mahals, was only entertainable if brought in accordance with the provisions of Section 111 of the same Act. The particular suit before him the learned Munsif held not to-have been brought under Section 111 of that Act. because instituted more than three months after the Commissioner s order of July the 19th, 1911. He accordingly dismissed that suit, relying upon a repented decision of two learned Judges both of whom have subsequently sat as Judges of this Court in the case of Narendra Bahadur Singh v. Moti Lal Singh 11 O.C. 114. The plaintiff then appealed to the Court of the District Judge. The order dismissing his suit was there affirmed, though on a different ground. The learned District Judge referred to the reported decision of a single Judge of this Court in Banwari Lal v. Gopi 4 A.L.J. 713 : A.W.N. (1907) 2828 : 30 A. 44. According to this decision an order requiring a party appearing before a Revenue Court to file a suit in a Civil Court within a limited time involves a suspension and supersession of the ordinary period of limitation prescribed for such a suit so that if the suit be instituted beyond the period limited by the order of the Revenue Court then it must be treated as barred by limitation, irrespective of any period which may be provided for such a suit by the first Schedule of the Indian Limitation Act. THIS ruling can no longer be accepted as good law. It was quoted before a Bench of this Court in Randhir Singh v. Bhagwan Das 21 Ind. Cas. 654 : 11 A.L.J. 746 : 35 A. 541 and though not expressly dissented from in the reported judgment it seems to me to have been practically set aside. That case was very much on all fours with the one now before me and is in fact indistinguishable from it. It is obvious that the present suit was not barred by the ordinary law of limitation so that Rule 2, Order XXIII, Civil Procedure Code, cannot be quoted or relied on with respect to it. The penalty provided by the Land Revenue Act itself for failure to institute a suit within the limited period is that the Collector shall decide the question in issue against the person who has failed to institute a suit. The learned Judges of this Court held that in circumstances like the present there has been no failure to institute a suit within the period prescribed by the order of the Revenue Court and that no question of limitation being involved, the suit when instituted afresh after the order of withdrawal is not obnoxious to the provisions of Order XXIII, Rule 2, Civil Procedure Code. So far as the question discussed in the Oudh case as to the applicability of Section 233 (k) of the Land Revenue Act is concerned, the point does not seem to have been expressly taken before the learned Judges of this Court. They seem to me to have decided by implication that the order of the Revenue Court directing a party to file a suit in the Civil Court within three months having once been complied with, the Civil Court became seized of jurisdiction in the matter, even though this jurisdiction might otherwise have been barred by Section 233 (k) of the Land Revenue Act. Having jurisdiction to deal with the suit; the Civil Court could, therefore permit the plaintiff to withdraw the same and re-institute it in an amended form. At any rate I am bound by the decision of a Bench of this Court in a similar case, and it follows that I cannot maintain the order of the lower Appellate Court. It has been represented to me in argument on behalf of the respondents that the proceedings in partition have in the meantime been going on, so that the state of affairs at the present moment is no longer the same as it was when this suit was instituted. The suggestion is that the defendants ought under the circumstances to be permitted to enter into fresh pleadings, and perhaps to satisfy the Court that whatever may have been the case at the moment when the first suit was instituted, the plaintiff is no longer entitled either to a declaration or to a decree for recovery of possession. THIS is a matter which the defendants should bring to the notice of the lower Appellate Court, to which Court the case must now go back. That Court dismissed the appeal of the plaintiff upon what was strictly a preliminary point. It has not gone into any of the other issues in the case, and its decision on the preliminary point in question I must, in accordance with the decision of Randhir Singh v. Bhagwan Das 21 Ind. Cas. 654 : 11 A.L.J. 746 : 35 A. 541, now reverse. I, therefore, set aside the decree of the lower Appellate Court, and remand the case to that Court under Order XL, Rule 23, Civil Procedure Code, with directions to re-admit the case on to its file of pending appeals and dispose of it according to law. Costs of this appeal which will include fees in this Court on the higher scale will abide the event.