SADASHIV RAO DESHMUK Vs. LAXMAN SAO KALAR

JUDGEMENT

(1.) THE plaintiff's suit has succeeded in both the lower Courts, and the defendant has now come up here on second appeal against the decree of land-revenue for five years from 1920 to 1925 in respect of the sir plot No. 23 leased by the defendant to the plaintiff.

(2.) THE facts of the case are fully stated in the judgment of the lower appellate Court and only three points have been raised on appeal. For the first time in this Court it has been urged that the present suit was barred by res judicata in view of the decisions in the previous suits, 32 of 1923 and 273 of 1920. It seems to me that this Contention has been raised far too late and cannot properly be considered now. Questions of fact and of law are both involved, and I do not think it would 'be proper to allow the contention, even it had any merits to succeed now. On the materials before me I feel bound to add that, in my opinion, there is no force whatever in the present plea of res judicata. The parties were suing and being sued in a different capacity in the previous suits; the causes of action were different and the whole nature of the suits was different.

(3.) THE third contention offered on behalf of the defendant-appellant is an equally futile one. It is urged that the word "thereupon" in Section 159, Sub-section (3), C.P. Land Revenue Act, 1917, means that, revenue shall only be payable on the land concerned from the date of the Deputy Commissioner's order, or even from the beginning of the agricultural year next following thereon. I can see no substance whatever in his contention. The right to reimburse the land revenue concerned was already in existence. The procedure laid down in Section 159 merely gives the proprietor the actual weapon or instrument by which to recover the land-revenue in question, and it ipso facto follows that, subject to the limitation applicable, such land revenue can be recovered for any of the years which do not fall under the ban of limitation. All that the provision in question does, in short, is to change an inchoate right into a choate one. Had the legislature intended to lay down that the right to recover land revenue was only to come into existence and to have effect as from the date of the Deputy Commissioner's order, or as from any other date, e.g., the beginning of the next agricultural year or the like, it is inconceivable that the legislature would not have framed their intention in language precisely indicating this. Very obviously, once the liability of the defendant to contribute his quotum of land revenue has been affirmed by the revenue Court, the present plaintiff can claim such land revenue for any years which do not fall under the ban of limitation applicable. Holding, as I do, that the time spent by the plaintiff-respondent in pursuing his remedy in the wrong Court must be excluded, the whole of the present plaintiff's claim is within time.