MANRAM SINGH Vs. BHOLA SINGH

JUDGEMENT

(1.) PIRBHU Singh, maternal grandfather of Manram Singh, defendant No. 1, executed a perpetual lease on the 19 of April 1881, in favour of Dal-ganjan Singh, father of the plaintiff and Timal Singh and Mukhai Singh, of the property in suit. In 1892 Manram Singh defendant No. 1 applied for the ejectment of defendants Nos. 2 and 3. The case was compromised and it was agreed that the plaintiff and defendants Nos. 2 and 3 would remain in possession of the property. Manram Singh defendant No. 1 again applied for the correction of the jamabandi and compromised with the defendants Nos. 2 and 3 on the 16 of December 1901, to the effect that they would be recorded as occupancy holders of one-half and he (the defendant No. 1) would be recorded as sir holder of the other half. The plaintiff instituted the present suit on the 20 of May 1907 for the cancelment of the compromise, dated the 16 December 1901, on the allegation that it was made behind his back and without his consent or knowledge that it affected his rights in the property in dispute, that he became aware of it on the 14 of May 1907, and that it was fraudulent and collusive. The defence inter alia, was that the suit was barred by limitation, that the Civil Court had no jurisdiction, and that there was no fraud. The Court of first instance, coming to the conclusion that Timal as the manager of the joint Hindu family was competent, to enter into: the compromise complained of and that no fraud was proved, dismissed the suit. The lower appellate Court reversed the decree of the Court of first instance. With reference to the plea of fraud that Court in its judgment says: "It is no straining of the language of law to pronounce such a transaction as fraudulent as against the plaintiff." Regarding the plea of jurisdiction that Court says--" On the authority of Rai Krishan Chand V/s. Mahadeo Singh 1901 A.W.N. 49; it has been urged on behalf of defendant that a Civil Court was not competent to make a declaration that compromise in proceedings in a Court of Revenue is illegal or without authority. The ruling holds good when the matter is one which is exclusively cognizable by a Court of Revenue. In the present instance the: proceedings were recorded in the settle-ment department and was one in which the Revenue Court may not be said to have had an exclusive jurisdiction. Hence the case is not applicable in the present instance." With regard to the plea of limitation that Court finds that according to the allegations in the plaint the plaintiff became aware of the fraud on the 14 of May 1907, and that that statement was not rebutted by any evidence on behalf of the defendants. On these findings the lower appellate Court on the authority of Sukh Lal V/s. Madhuri Prasad 1905 A.W.N. 88 and other cases cited in the judgment held that the suit was not barred by limitation. Manram Singh defendant has preferred a second appeal to this Court. It is argued by his learned vakil that the Civil Court has no jurisdiction to cancel the compromise of the 16th of December 1901, which was entered into a matter which was exclusively within the cognizance of the Revenue Court and over which the Civil Court had no jurisdiction whatsoever. In support of his contention the learned vakil relies on the case of Rai Krishn Chand V/s. Mahadeo Singh 1901 A.W.N. 49 That case lays down that a Civil Court is not competent to make declaration that a compromise in a Court of Revenue in a matter in which the Revenue Court has exclusive jurisdiction and upon which the Revenue Court has made decree or order is illegal or without authority. The learned vakil for the respondents in answer to this contention says that the compromise was effected in an application for correction of jama-bandi, that the entry in the jamabandi is founded on the basis of actual possession and that persons not in possession but claiming the right to have possessions have a remedy in the Civil Court. In support of the large proposition he relies upon Ajudhia Singh V/s. Ram Dial Upadhia 1908 A.W.N. 3. The case relied on by the learned vakil for the respondent is under the new Revenue Act, III of 1901, and has, therefore, no direct bearing upon the case, which has to be decided under the old Act. But from the language used in Section 64 of Act XIX of 1873 and from the fact that the entries made by the settlement officer are made on the basis of actual possession, I have not the slightest doubt that any person who claims to be entitled to possession has a right to institute a suit in the Civil Court to establish his claim. It is contended by the learned vakil for the appellant that under the terms of Section 241 (e) of Act XIX of 1873 the formation of the record of rights is a matter over which no Civil Court could exercise jurisdiction. In the present case, however, the plaintiff claims to have a compromise, on the basis of which an entry in the jambandi was made, cancelled; and that in no way is out of the jurisdiction of the Civil Court by virtue of the provisions of Section 241, Act XIX of 1873. The decision of the lower appellate Court on the question of jurisdiction is, in my opinion, right.

(2.) AS to the question of limitation, I am of opinion, that the case is governed by article 91 of the second schedule of the Indian Limitation Act, No. XV of 1877, The starting point of limitation under that article is the time when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The plaintiff's allegation is that the compromise became known to him on the 14th of May 1907 and according to the finding of the lower appellate Court the defendants failed to establish that the compromise, dated the 16 of December, 1901, became known to him at a time which was more than three years before the institution of the suit. The suit, in my opinion, is not, therefore, barred by limitation. In the view I take of the case it is unnecessary for me to decide whether a fraud was or was not committed by the defendants. The result is that I dismiss the appeal with costs including in this Court fees on the higher scale.