KUNWAR RAJENDRA BAHADUR SINGH Vs. RAI RAJESHWAR BALI

JUDGEMENT

(1.) On 3 November 1930, the appellant, acting under Chap. 7, United Provinces Land Revenue Act, 1901 (herein called "the Act"), presented in the Court of the Assistant Commissioner of Bara Banki an application for partition to which the first respondent filed objections. The case was tried as a suit under S. 111, sub-s. (3) of the Act and on 16th November 1931, the Assistant Commissioner dismissed the application with costs. The appellant under S. 112 of the Act, read with S. 39, Oudh Courts Act, 1925, had a right of appeal from this decision either (a) to the Court of the District Judge within 30 days (Art. 152, Sch. 1 to the Indian Limitation Act, 1908), or (b) to the Chief Court within 90 days (Art. 156) according as "the value of the original suit" did not exceed Rupees 5,000 or was in excess of that amount. On 17 December 1931, he brought his appeal in the Court of the District Judge valuing the appeal at Rs. 1,000. At the hearing on 9 April 1932, objection was taken to the competence of the appeal on the ground that the true value was in excess of Rs. 5,000 ; and on 22 April, 1932, the District Judge upheld this objection and directed that the memorandum of appeal be returned to the appellant for presentation to the Chief Court. This order was not appealed from : the appellant on 25 April presented a memorandum of First Appeal to the Chief Court but as the 90 days allowed had elapsed in February he presented with his appeal an application for extension of time under S. 5, Lim. Act. This application was dismissed by the Chief Court on 21 March 1934, and by a decree of the same date the appeal was dismissed as barred by limitation. On 26 March 1935, the Chief Court certified that the case was fit to be taken on appeal to His Majesty in Council. The sole question before the Board is whether the learned Judges of the Chief Court were right in dismissing the application made to them under S. 5, Limitation Act. By that section an appeal may be admitted after the period of limitation proscribed therefor, when the appellant . . . satisfies the Court that he had sufficient cause for not preferring the appeal .... within such period.

(2.) Upon the footing that the appeal lay to the Chief Court, the appellant cannot be charged with dilatoriness as he challenged the Assistant Commissioner's decision within a month : nor can respondent 1 in view of that challenge be regarded as having on the expiry of the 90 days more than a conditional right to treat the appellant's suit as at an end. It is not disputed that in valuing the suit for the purposes of his appeal the appellant acted in good faith on the advice of counsel honestly given. Indeed the error is not shown to be attributable to bias : the court-fee on the appeal (as Mr. DeGruyther with complete fairness pointed out) would be the same in either Court - viz., ten rupees; and the appeal was brought in the Court which required the greater degree of diligence. The Chief Court's refusal to admit the appeal was based on the view that counsel ''did not exercise due care and attention and acted with gross negligence in the matter." If this opinion be correct, their Lordships will assume that in the present case it would suffice to justify the dismissal of the appeal. It clearly involves however that the view taken was not such as could have been entertained by a competent practitioner exercising reasonable care.

(3.) The "suit" which has to be valued under S. 39 (1) (a), Oudh Courts Act, 1925, is that which was brought on a prescribed form by the application of 3 November 1930. That document purports to be an application for partition of the village Daryabad. A scrutiny of the entries under the different headings of this form shows that by some entries the whole village is brought within the scope of the claim, while by the entries under the fourth heading and by the remarks under the tenth, the purpose of the application is described in a more limited manner. The application was certainly unusual and the product of exceptional circumstances : the Assistant Commissioner who dismissed it does not seem to have thought it very sensible; but the appellant's object is clear enough. The village Daryabad was assessed to revenue as six separate "mahals" or units of assessment. One of the six mahals was Mahal Harha and the khewat showed this as comprising 452 bighas belonging to the appellant, 19 belonging to Government, and 196 as "shamilat of the owners of the village". The "shamilat" or common land which was assessed as part of this mahal was really the "abadi" or residential portion of the village, and on it were houses and buildings belonging to the first respondent, to the appellant and to others. The appellant's 452 bighas were entered as khata No. 1 of the khewat and the shamilat as khata No. 3, khata No. 2 being the Government land. Apart from Government land the other mahals of the village comprised the several lands of the first respondent and other owners, and in some cases land common to the proprietors of the mahal. The appellant's predecessor-in-title had in 1907 attempted to get partition of the shamilat in khata No. 3 of Mahal Harha, and to confine that mahal to his own land and Government's, relegating the abadi land of other proprietors to other mahals.