NABOGHAN BADHAI Vs. RAGHU NATH BABU

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of Sambalpur, confirming the decree of the Subordinate Judge of the same district.

(2.) The land in dispute is situated in the District of Sambalpur and in matters pertaining to the land revenue is governed by the Central Provinces Land Revenue Act (XVIII of 1881) The dispute relates to an entry made in a Record of Rights prepared under Chapter VI of that Act. The entry describes the appellants as shikmi gaontias or permanent tenants under the plaintiffs, who are the gaontias of the village. At this stage of the litigation it is very properly conceded that if it is open to the plaintiffs to contest the correctness of the enter, the entry is wrong, the lease granting the appellants a permanent tenancy having been judicially set aside. On the other hand it is not denied that the appellants are entitled to possession as mortgages. In substance, therefore, the plaintiffs seek to have the entry amended so that the appellants may be described as mortgages an not as permanent tenants.

(3.) The suit was instituted by the plaintiffs and dealt with by the Court below as a suit under Section 83 of the Land Revenue Act. On that footing the principal question which arises is, whether a suit under Section 83 is subject, as regards limitation, to Article 4 or to Article 120 of the Schedule of the Limitation Act. Article 14 applies ?to suits to set aside any act or order of an officer of Government in his official capacity? and the period of limitation provided is one year from the date of the act or order. Under the omnibus Article 120 the period of limitation is six years from the time when the right to sue accrues. Section 83 enables a suit to be brought to have entries in a suit to be brought to have entries in the Record of Rights relating to certain specific matters ?cancelled or amended.? We are not concerned with the rest of the enabling clause or with rest of the enabling clause or with the two provisos For the appellants it is contended that an entry in a Record of Right is an ?act? or ?order? of a Government officer and that as Section 83 in effect authorizes the Civil Court to set aside such act or order in certain cases, the present suit, if it falls within the section, must be governed by Article 14. The argument is directed to the distinction suggested by reported cases between a power on the part of the Civil Court to make a decree which is merely declaratory of the plaintiff?s rights and a mere basis for further proceedings before some Revenue or other officer and a power to make a decree which positively sets aside and nullifies something which an officer of Government has done. In illustration reference may be made to Agin Bindh v. Mohan Bikram Shah 30 C. 20 at p. 27 : 7 C.W.N 314 and Parbati Nath v. Rajmohun Dutt 29 C. 367 : 6 C.W.N. 92. The appellants would have it that the decree made below are decrees of the latter class, and if it be assumed that the disputed entry is an ?act? or ?order? which has been set aside, the language of Section 83 lends some colour to the contentions advanced. But Section 83 must be read, in my opinion, as the lower Courts have read it. With Section 120 and 152. The Record of Rights in question has been made over to the Deputy Commissioner and Section 120 gives the Deputy Commissioner power in such case to correct any entry on certain grounds of which one is the following: (b) that by a decree in a suit under Section 83 it has been declared to be erroneous.