Michael Westropp, C.J.
1. The plaint, which was presented upon the 25th August 1871, states that the cause of action accrued on the 30th day of June 1865. The defendant (who was the special appellant) contends that this is merely a suit for a declaratory decree, and, as such, falls within Clause 16, Section 1 of Act XIV of 1859, and, not having been brought within six years of the alleged accruer of the cause of action, is barred, inasmuch as, he argues, that six and not twelve years is the period of limitation for declaratory suits, even though they should relate to immoveable property. The members of the Division Court differed in opinion--Mr. Justice MELVILL holding that the plea of limitation was in time, and that Clause 16, Section 1 of Act XIV of 1859, and not Clause 12, Section 1, was the enactment applicable to such a declaratory suit as the present suit, which, therefore, was barred. Mr. Justice Nanabhai Haridas held that the plea of limitation was too late, and, further, that, even if that were not so, the period of limitation was twelve and not six years, and hence the suit was not barred. Mr. Justice Melvill, being the senior Judge, the decree was made pursuant to his views, reversing the decree of the Assistant Judge, and rejecting the plaintiff's claim as barred by Act XIV of 1859, Section 1, Clause 16.
2. The plaintiff has appealed under Section 15 of the High Court Charter of 1865. That appeal has been heard by my brothers, West and Pinhey, and myself.
3. None of the defendants in their written statements by way of defence raised the question of limitation, nor did they, or the Subordinate Judge who first tried the case, or Mr. Hosking, who heard the appeal from his decision, raise that question. Nor was it raised on the special appeal from Mr. Hosking's decree heard by Kemball and Nanabhai Haridas, JJ., sitting as a Division Bench of this Court. They reversed Mr. Hosking's decree, and remanded the cause for the Assistant Judge to consider whether the plaintiff had established his right to be declared an eight-anna sharer in a Patilki vatan, as stated in the plaint, without regard to any one particular right forming a portion of it, except as evidence of the general right set up, and to decide aye or no--passing a fresh decree in accordance with his finding.' No application for review of their decree, or appeal against it to Her Majesty in Council, has been made. That decree evidently limited within strict bounds the inquiry which the District Court, to which the cause stood remanded, was at liberty to institute on the new trial, and that Court could not then have entertained the question of limitation. That being so, the circumstance, that Mr. Parsons, the Assistant Judge, who heard and decided that case on remand, did not raise or enter upon that question and decide it in favour of the defendants, does not constitute any valid objection to his decree on special appeal against it, and it was not, in our opinion, competent for the High Court on such special appeal to permit the defence of limitation to be raised. In Munshi Buzl Ruheem v. Shreenath Bose 6 Cal. W.R., 178, Peacock, C.J., and Shumboonath Pandit, J., where a cause had been remanded by the District Court on a point affecting the merits, and the defendant, after that point had been determined against him by the Principal Sadr Amin, made a second appeal to the District Court, and then, for the first time, raised the defence of limitation, held that the last-mentioned Court properly refused to enter upon that question. In Kuria v. Gururav 9 Bom. H.C. Rep. 282 the effect of a previous remand for the trial of a special issue in limiting the scope of this Court's action, when the cause comes again before it on special appeal from the decree made by the lower Court on remand, was not discussed, and that case, therefore, cannot be regarded as an authority on that point.
4. The Civil Procedure Code, Section 26, requires that the plaint should state the cause of action and when it accrued, and the 32nd section enacts that 'If upon the face of the plaint, or after questioning the plaintiff, it appear to the Court that the subject matter of the plaint does not constitute a cause of action, or that the right of action is barred by lapse of time, the Court shall reject the plaint: provided that the Court may in any case allow the plaint to be amended if it appear proper to do so.' As a matter of fact, the Court of First Instance did not reject the plaint when presented to it, and it is quite possible that the Court refrained from so doing, notwithstanding the statement in it that the Collector's letter of the 30th June 1865 was the cause of action because the Court perceived that no letter from the Collector or other revenue officer could constitute a cause of action against the defendants who were other persons, and that the real cause of action was the disturbance of the plaintiff in his share of the Patilki vatan, the actual time of which disturbance does not appear upon the face of the plaint, although the dates of the various orders of the Mamlatdar, Collector, and Revenue Commissioner may do so. The actual disturbance would be the first time that the defendants appropriated to themselves any portion of the vatan which the plaintiff ought to have received. But whether or not this was the reason which influenced the Court of First Instance in accepting the plaint without objection as to limitation, or requiring amendment, we, for the reason already stated, do not think that the defence of limitation can be raised for the first time after there has been a remand and on a special appeal from the decree of the Court which has heard the cause on remand. If it do not appear to the Court, either on the face of the plaint or from the plaintiff when questioned, that the suit is barred by limitation, there is nought in the Civil Procedure Code to show that the Court of First Instance, or other Courts on appeal, should ex mero motu, without plea, raise the question of limitation. And, speaking for myself alone, I reserve the right to consider whether, even upon a special appeal, in a case in which there has not been any remand, I should follow Saluji v. Rajsanji 2 Bom. H.C. Rep. 162 and Davlata v. Beru 4 Bom. H.C. Rep. 197. There having, however, been a remand in this case, it was not, we think, competent for the Division Bench, to which there was a special appeal from the decree made on such remand, to permit the defence of limitation to be raised for the first time, To decide this case then upon that ground was virtually to review the decree of the Division Bench, which made the order of remand on the special question already mentioned. For, if the point of limitation were good, the Division Bench should have disposed of the case on that ground, and not have remanded the cause, as it did. One Division Bench has, we think, no authority thus to review the decree of another Division Bench. And it is clearly objectionable that, after the parties have been four times contesting the case on the merits, the defendant should, on the fifth occasion, treat all that had gone before as so much time wasted, and should raise the defence of limitation which naturally ranges itself under the category of preliminary objections to the suit, and, if not discovered and taken by the Court at the first stage of the suit, as pointed out by Section 32 of the Civil Procedure Code, should be made by the defendant at the earliest opportunity afterwards, in order to prevent the waste of time and money which a different course would entail. I am now considering this matter with reference only to Act XIV of 1859, as taken with Act VIII of 1859, Sections 26 and 32, and not expressing any opinion upon the construction of Act IX of 1871, Section 4.
5. Parker v. Elding (1 Bast, 352), which has been mentioned, was a case of jurisdiction not limitation, and the objection of want of jurisdiction appeared on the record. In Lila Moroji v. Vasudev Moreshwar 11 Bom. H.C. Rep. 283 not only does the order of remand appear to have been for a new trial on the merits at large, but the ground on which the High Court dismissed the suit, when the decree made on remand was specially appealed against, was that there was no cause of action whatever--the right to redeem not having accrued when the suit was instituted--a very different ground from limitation. Under such circumstances it would have been impossible to have made a decree for the plaintiff there.
6. In Gopalrav v. Bhavanrav (Special Appeal No. 373 of 1873, decided by WEST and Nanabhai Haridas, JJ., 18th November 1874, p. 279 of printed judgments for 1874, not reported) a party who had failed to dispute the jurisdiction in the Court of First Instance, the District Court, and on special appeal to this Court, was held estopped from denying the jurisdiction when the cause subsequently came before this Court on a fresh special appeal. See also Ex parte Manohar Bhivrav 2 Bom. H.C. Rep. 374 and Trilochun Doss v. Gugun Chunder Dey 24 Cal. W.R. 413. In the Palitana case (Ladkuverbai v. Ghoel Shri Sarsangji Pratabsangji 7 Bom. H.C. Rep. 150, the defendant had, throughout the proceedings, disputed the jurisdiction--a circumstance which completely distinguishes that from the other cases now mentioned.
7. We, for the foregoing reasons, reverse the decree of the Division Bench of the 21st September 1876, and restore that of the Assistant Judge, Mr. Parsons, of the 18th January 1876, and direct the respondent (defendant) Gopal bin Satu to pay the costs of his special appeal (207 of 1876), which for the first time raised the defence of limitation, and the costs of this appeal from the decree of the Division Bench on that special appeal.