ASHUTOSH ROY CHOWDHURY Vs. MONO MOHAN ROY CHOWDHURY

JUDGEMENT

(1.) The defendants are the appellants before us. The plaintiff s, brought the suit out of which this appeal arises for declaration of their right m permanent tenure-holders to two plots of land described in schedules ga and gha of the plaint and for confirmation of possession or in the alternative for a decree for possession if it was found that they were out of possession. There were several other prayers which it is not, necessary to state now. The facts on which they base their claim may be shortly stated thus: There is a revenue paying Estate No. 955 known as Ramdeb Basu Choudhuri of which the plaintiffs, the defendants and several other persons wore co-sharers. There was a private partition under which two sets of co-sharers held two plots of land separately and these were recorded in the Record of Eights as Cadastral Survey Plots Nos. 1020 and 1021. Those two sets of Co-sharers created permanent tenures with regard to the two plots of land in favour of the plaintiff under which title the plaintiffs have been in possession of those lands. The disputed plots of land were part and parcel of the Cadastral Survey Plots Nos. 1020 and 1021. There was subsequently a partition of the estate under the Estates Partition Act (V of 1897, B.C.). There was a direction by the Board of Revenue that the Record of Eights should, as far as possible, be the basis of the partition. The greater part of the plots Nos. 1020 and 1021 have been allotted to the shares of the representatives of the lessors of the plaintiffs but the disputed portions have been fraudulently included in the portions allotted to the defendants and a cloud has thus been cast on the plaintiffs title. The defendants contested the plaintiff's claim on various grounds. The trial Court dismissed the suit. On appeal by the plaintiffs the Subordinate Judge has decreed the suit declaring their title as claimed and directing that they should recover possession of the disputed land which shall remain a part and parcel of defendants separate estate and the defendants will be entitled to get proportionate rent from the plaintiffs for these lands which will be ascertained in a properly framed suit.

(2.) The defendants raise various grounds of appeal against that decree, the first of which is that the appeal by the plaintiffs to the lower appellate Court was barred by limitation and that the Court acted wrongly in extending the period of limitation under Section 5 of the Limitation Act. This argument is based on the following facts. Judgment was delivered by the trial Court on the 9 of February 1922; decree was signed by the Judge on 5 of April 1922; the appeal was lodged on 10 of May 1922. If the period between the date of judgment and the date when the decree wa3 signed is excluded along with the actual period necessary for the preparation of the copy of the decree there can be no question that the appeal was presented within the period of limitation. That the period between date of the judgment and the date of signing the decree should be excluded in computing the period of limitation has been settled so far as our Court is concerned by the Full Bench decision in Bani Madhub Mitter V/s. Matungini Dassi (1886) 13 Cal. 104 (F.B.). Whatever argument may be based on the provisions of the Civil P.C. and the Limitation Act, we are bound by the decision in that case. But it is argued that that case is no longer law having regard to the decision of the Privy Council in Pramatha Nath Roy V/s. Lee A.I.R. 1922 P.C. 352 which affirmed the decision of this Court in Pramatha Nath Roy V/s. Lee [1919] 23 C.W.N. 553. That decision was with regard to a case on appeal from a decision on the Original Side of this Court where the rule is that the decree or order is not drawn up without an application by the party and the conduct of the appellant was held to be negligent in that case. There is no such rule in the moffusil and the party has no control over the matter of signing of the decree by the presiding Judge. The Full Bench case in Bani Madhub Mitter V/s. Matungini Dassi [1886] 13 Cal. 104 (F.B.) was neither overruled nor disapproved by their Lordships of the Privy Council but seems to have been approved, (see page 1004 of 49 Cal., The next case cited Kamruddin Hyder V/s. Mitter only followed the rule in Pramatha Nath Roy's case A.I.R. 1922 P.C. 352 and has no application to this case. The last case cited, Harish Chandra Tewari V/s. Chandpur Co. Ltd. [1912] 39 Cal. 766, Kamruddin Hyder V/s. Mitter with regard to an application for leave to appeal to the Privy Council in which it was held that the decision of the Full Bench in Bani Madhub Mitter V/s. Matungini Dassi [1886] 13 Cal. 104 (F.B.) did not apply to such a case. The practice of excluding the period in question has been followed uniformly for at least 40 years and is still followed in the appellate side of this Court in accepting appeals from decrees of subordinate Courts. I do not therefore, think that the appeal presented to the lower appellate Court was Court below acted wrongly in extending the period of limitation under the circumstances if it was of opinion that the appeal was barred by limitation. This contention of the appellants fails.

(3.) The arguments on behalf of the appellants on the other questions were placed under the following" heads: (1) the suit is barred under Art. 14 of the Limitation Act; (2) Section 119 of the E states Partition Act bars a suit of this nature; (3) in order to disturb a" partition of the estate all the former co-sharers of the estate should have been made parties; (4) the allotments having been made with the consent of all the co-sharers, the plaintiffs cannot seek for an alteration; (5) under Section 99 of the Estates Partition Act the plaintiffs have no right to these lands, but their remedy is against their own lessors. Before dealing with these questions it is necessary to state that the allegation of fraud made by the plaintiffs has been found against them by both the Courts below. The question of a private partition of the estate was attempted to be raised in the trial Court at a late stage, which was not allowed by that Court. A similar attempt was made in the lower appellate Court but without any result, and in this Court the case of a previous partition of the estate has not been urged at all, and in fact it was stated by the learned vakil for the respondents that the endeavour of the plaintiffs to prove such a partition was misconceived. The case for the plaintiffs-respondents, which was for the first time clearly stated before us by their learned vakil, is that they do not desire to alter the boundary of the separated estates nor do they want that the allotment of the defendants should be reduced or that the acts of the partition authorities should be interfered with in any way. All they want is that their tenure should not be held to be reduced by the action of the partition authorities, and that they should hold the disputed lands under the defendants as tenants. Or, in other words, they urge that the decree as made by the lower appellate Court should stand. As the confusing statement of the claim of the plaintiffs has now crystallized in this form, the short point which arises is whether the plaintiffs are entitled to the lands as tenure holders under the defendants. This may be considered from two points of view : first, whether Section 99 of the Estates Partition Act applies to this case ; and secondly, if not, whether plaintiffs are entitled to hold the lands under the defendants having regard to the equitable principles applicable to cases of partition of joint estates.