PARJAPATI Vs. JOT SINGH

JUDGEMENT

(1.) This is a reference for the third time by the Local Government of a case which has been decided three times on appeal by the Commissioner of Kumaun against seven persons who are described as the plaintiffs. The opposite party made an application for partition of an area described as 64 1/16 Nalis in Mauza Srikote. There was an objection filed by certain co-sharers to the effect that 38 10/16 Nalis was their hissedari land and therefore must be excluded from the partition. The trial Court states: "As a question of proprietary title has been raised by them they were ordered to deposit court-fee, which they did." These persons who were originally defendants in the suit for partition became nominally plaintiffs in the same Court which proceeded to try their claim that they were proprietors exclusively of the particular area of 38 10/16 Nalis which they claimed. Six issues were framed by the trial Court. Only two of these issues were decided : issue 1, that the suit of the plaintiffs was barred by limitation and issue 6 that it was barred by estoppel. The lower appellate Court and the Commissioner of Kumaun as the Court of second appeal upheld that decision. The Commissioner dismissed the suit on the ground of estoppel. A reference was made to this Court and this Court gave an opinion in 1929, but in 1930 the Commissioner affirmed his previous opinion that the suit was barred by estoppel. A second reference was made to this Court and this Court on 14 April 1932 gave its opinion that there was no estoppel and that the proper order for the Commissioner to pass would be to remand the case to the Court of first instance for decision on the merits, unless he holds that the suit is barred by limitation. The Commissioner has found on 19th December 1932 that the suit is barred by limitation. The reference by the Local Government is whether that decree of the Commissioner is correct or not. It would have been more regular if a question of law had been framed but as the decree of the Commissioner proceeds merely on the point of limitation it is sufficient for the purpose.

(2.) The history of this matter begins in the year 1862 when a settlement was made by Mr. Beckett and there was a dispute between co-sharers of the village Srikote and the co-sharers of another village Uregi, Geeta Ram and Shiv Dutt who were ancestors of the plaintiffs made an application to Mr. Beckett and he ordered certain land to be expunged from the papers of Uregi village and to be entered in the papers of Sribote. The land at that time was only an area of 33 14/16 Nalis. The persons who had then acted in the matter, Geeta Ram and Shiv Dutt, were recorded as sirtans of the land. The next proceeding took place in 1891 and 1892 when there were two orders by the settlement Deputy Collector of a later settlement, the orders being dated 22 June, 1891 and 17 June 1892. An application had been made by Ganga Ram, ancestor of the plaintiffs and Narayan Dutt. The judgments in question are in some Hindi or Pahari dialect and have not been translated, but learned Counsel admits that the effect of these judgments was that an alteration was made in the revenue records and it was entered that the land which had come from mauza Uregi was the sanjarit of the village Srikote and that it was not the exclusive hissedari of the ancestors of the plaintiffs. In 1900 there was a partition, the applicants being Ganga Ram Parmanand, one of the present defendants, and Sri Ram. They applied for a partition of Sanjait land. An application was made by Sridbara Nand, plaintiff, Narayan Dutt, father of Nanda Dutt, Sureshnand and Umesha Chandar, plaintiffs. This application claimed that some of the land was grazing land. The land to which objection was taken was only of a small area of 7-6/16 Nalis. Learned Counsel for the defendants has argued that this area was a part of the area now claimed by the plaintiffs but he has failed to satisfy us on this point. The area now claimed by the plaintiffs is plots 1683 and 1697, area 38-10/16 Nalis. In the 1900 settlement it was held that the claim of the plaintiffs that the small piece of land was grazing land was unfounded.

(3.) Now it is contended by the learned Counsel that under Art. 120, Lim. Act, the present suit of the plaintiffs is barred. It is necessary for the defendants to show that the right claimed by the plaintiffs at present was asserted by the plaintiffs more than six years before the present suit and was denied more than six years before the present suit. Learned Counsel alleges that there was such an assertion and denial in the proceedings in 1891 and 1892 and he claims that those proceedings constitute a bar against the present suit of the plaintiffs. For this he relies on a ruling reported in Akbar Khan V/s. Turaban (1909) 31 All. 9. In that case the plaintiffs sued in 1904 alleging as their cause of action that in 1895 the name of the defendant had been entered in respect of the property in suit in the revenue papers and the title of the plaintiffs was denied. The cause of action setup more than six years before the filing of the suit, it was held therefore by the lower Courts that the suit was barred-under Art. 120. In appeal in the High Court it was urged on behalf of the plaintiffs that in 1901 the plaintiffs had applied for correction of the khewat and-that application was opposed by the defendant and that this gave rise to a fresh cause of action in favour of the plaintiffs. On p. 11 the judgment held: As in the present case there was no fresh-invasion of the right of the plaintiffs, the rulings referred to are inapplicable, and further on p. 10: The refusal to have the entry corrected was a continuation of the original cause of action, namely, the entry of the defendant's name in, the revenue papers in 1895.