SARASHIJAKSHA CHATTERJEE Vs. KARPUR KAMINI DEBY

JUDGEMENT

(1.) These two appeals have been argued together. Appeal No. 124 of 1936 is from Suit No. 835 of 1934. In this case the plaintiffs claimed that they have the right to take water from defendant's tank (Dag No. 1534) for the purpose of irrigating certain plots of the plaintiffs. The trial Court decreed the suit in part. In appeal the suit has been dismissed. Upon hearing the learned advocate on both sides it appears that the learned District Judge misdirected himself on two points: (1) On the point of limitation he thought that the plaintiff's suit for correction of the Record of Rights was barred by limitation. The Record of Rights was finally published on 11 November 1927. The certificate of final publication was signed on 29th February 1935. The suit was instituted on 16 January 1934. The learned Judge thought that as the suit was instituted more than six years from the final publication, the suit was out of time. In this he was in error. Under Section 111-B, Bengal Tenancy Act, no suit affecting the record shall be instituted within four months from the date of the certificate of final publication for the decision of a question whether there is any special condition or incident of the tenancy. Now, in this case, the plaintiff prayed for a declaration that they had the right in respect of certain plots of getting irrigation water from the defendant's tank, that this right had been omitted from the settlement record and that the record ought to be corrected. Under Sub- section (4) of Section 111-B, the period of four months shall be excluded in computing the period of limitation prescribed for such suit. A suit for such a declaration and correction of the record is under Art. 120, Lim. Act, and the plaintiffs are entitled to deduct the period of 4 months. In that view the suit is clearly within time: see the case in Ashutosh Bhuiyan V/s. Radhika Lal .

(2.) In the second place the learned Judge in discussing the evidence disagreed with the findings of the Munsif and in doing so observed that the defendants had no notice of the local inspection made by the Munsif. In this also the learned Judge committed an error. The order sheet of the Munsif shows that on 20 December having heard the evidence of the plaintiff and after examining 5 defence witnesses, it is stated: "Plaintiffs file a petition for local inspection. The parties are informed that I shall inspect the locality tomorrow." The order on 21 December is this: Inspected the locality this morning. Babu Syama Pada Mukherjee and Babu Phani Bhusan Mukherjee, the learned pleaders for the plaintiffs and the defendants, accompanied me. The inspection notes will be filed tomorrow.

(3.) The learned Judge was there clearly in error in thinking that the defendants had no notice of the inspection. Having regard to these errors of the learned District Judge, the decree made by him cannot be supported. The decree is set aside and the appeal remanded to the lower Appellate Court for fresh hearing according to law.