SECRETARY OF STATE Vs. DISTRICT BOARD

JUDGEMENT

(1.) The District Board of Rangpur instituted three suits being Suits Nos. 496, 497 and 498 of 1935, against the Secretary of State for India in Council. The suits were instituted under Section 106, Bengal Tenancy Act, for correction of the record of rights. All the suits were heard together and partially decreed. No appeal has been filed against the decision in Suit No. 497, and therefore I am not concerned with the decision in that suit. The defendant, the Secretary of State for India in Council through the Agent of the Eastern Bengal railway appealed against the decision of the Assistant Settlement Officer in the other two suits to the Special Judge; he upheld the decision of the trial Court with a small modification in Suit No. 496. He held that so far as that suit was concerned, the plaintiff's case had failed with respect to one of the plots, namely plot No. 669. Against this decision, the Secretary of State for India in Council has filed two appeals to this Court and the plaintiff has filed a cross-objection relating to that part of the decision of the Special Judge which related to plot No. 669. The appeals have been heard together and this judgment will govern both the appeals. After the case of the appellant had been argued for some time, Mr. Gupta appearing on behalf of the respondent stated that he does not press the cross-objection. It is accordingly dismissed. The case of the plain tiff is as follows: C.S. Plots Nos. 6077, 5328 and 4340 which form the subject-matter of Suit No. 495 and C. Section plots Nos. 144, 143, 141, 138, 669, 668, 129, 126 and 777 which form the subject-matter of Suit No. 496 are claimed by the plaintiff as forming part of roads belonging to the District Board; as I have stated before the plaintiff has now given up its claim to plot No. 669. The plaintiff's case further is that these plots were in the permissive occupation of the Eastern Bengal Railway under an arrangement between the plaintiff and the railway. When the settlement record of the area was prepared these plots were recorded in the khatians of the Eastern Bengal Railway as belonging to the railway and were omitted from the khatians of the plaintiff. The plaintiff accordingly brought these suits for the correction of the settlement record by inserting these plots in the plaintiff's khatians.

(2.) The position taken up by the defendant was that these plots have been properly recorded as belonging to the Eastern Bengal Railway. Another de fence taken was that Suit No. 496 was barred by reason of the provisions of Section 80, Civil P.C. The contention on this point briefly is this: The suit being against the Secretary of State for India in Council, it is necessary under Section 80 that a notice should be served upon the Secretary of State for India in Council; the Section also provides that the suit should not be brought until the expiry of two months next after the notice in writing has been served. The notice in this case was served on 17 August 1935. There-after, it was discovered by the District Board that plot No. 669 had been omitted from the notice. On 23 August 1935 another notice including this plot was served. The suit was filed on 23 October 1935. The contention of the defendant is that the time must be computed from the date of the second notice and that as the suit has been filed one day before the expiry of the period of two months from that date the suit is premature. The other de fences taken in the Courts below have now been abandoned. Both the Courts have held that Suit No. 496 is not premature. They have also held that the land which forms the subject- matter of these appeals belongs to District Board and not to the railway. They have found that the railway is in possession of the land with the permission of the District Board for certain limited purposes. The final, order passed by the lower Appellate Court is that the land which forms the subject-matter of these appeals shall be recorded in the khatians of the District Board and that in the remarks column of the khatians there should be a remark that the land is in the permissive possession of the eastern Bengal Railway.

(3.) Against this decision, the defendant has appealed. The learned junior Government Pleader appearing on behalf of the appellant urged three points before me. First, he said that the suit is premature by one day inasmuch as it has been brought before the expiry of two months from the delivery of the notice which had to be served on the appellant by reason of the provisions of Section 80, Civil P.C. Secondly he says that as the railway is admittedly in possession of the land which formed the subject matter of both the suits, the Revenue Officer was bound to record it in the appellant's khatians. He argues that the settlement record is prepared with reference to actual possession only and not with reference to title and that therefore even if it be conceded that the title is in the District Board, nevertheless, the District Board can get no relief in a suit framed under Section 106, Ben. Ten. Act. The third point taken is that the plaintiff has failed to establish its title to the land of these two suits. In my opinion, there is no substance in the first point taken. The first notice with respect to Suit No. 496 was served on 17 August 1935 and the suit has been brought on 23 October 1935. If the first notice be considered as subsisting then the suit is not premature as it has been brought after the expiry of two months from the date of service of the notice. The contention of the learn ed junior Government Pleader is that the first notice has been annulled by the second one and that the suit must be considered as having been filed with reference to the second notice. Mr. Gupta, appearing on behalf of the respondent, points out that this is not so. He shows that the second notice was stated to be in continuation and in modification of the first one. In my opinion the second notice nowhere annulled or cancelled the first one. It merely amplified it by adding plot No. 669 to the subject matter of the suit. The introduction of plot No. 669 was made too late and therefore the plaintiff-respondent has not been given any relief with respect to that plot; but it cannot be said that the second notice had the effect of cancelling the first one. The Secretary of State for India in Council had intimation by the first notice of the suit and the suit has been brought after the expiry of two months of that information. The requirements of Section 80 have been fully complied with. The second notice was served merely for the purpose of including plot No. 669. It cannot be reasonably argued; that because of this attempt on behalf of1 the plaintiff to add a new plot to the subject matter of the suit, it should be held that the suit so far as it relates to the other plots mentioned in the first notice is premature.