1. This suit was brought by the plaintiff against the Talukdari Settlement Officer of that time, Mr. Bhimbhai, to recover damages for certain alleged wrongful acts performed by the defendant in the recovery of certain cesses, which he alleged to be due from the plaintiff.
2. Before the suit had proceeded far, it appears that the Talukdari Settlement Officer, through his pleader, applied that the Thakor of Sanand and Koth, whose agent he (the Talukdari Settlement Officer) was, in these proceedings, should be joined as a necessary party. The District Judge of Ahmedabad raised a preliminary issue and held that the Thakor of Sanand and Koth was a necessary party to the proceedings. He was accordingly joined ; but no amendment appears to have been made of the plaint and no further relief claimed against the Thakor, who then stood on the record as the second defendant.
3. During the pendency of the litigation Mr. Bhimbhai died. His successor in the office of the Talukdari Settlement Officer was then put upon the record in his place. It is to be observed in connection with this brief history of this case that the results have been a little startling and we think a little irregular.
4. The suit against the original defendant was in form purely a personal action; but the District Judge was of opinion that before the defendant's liability for damage, in respect of the acts complained of, could be made out, certain questions would have to be investigated in which the Thakor of Sanand had an interest. These questions broadly were:--Whether the Thakor of Sanand was entitled to levy three cesses called Salami, Summary and Local Fund upon the lands of the plaintiff. Still it is to be borne in mind that the relief's actually prayed for by the plaintiff were exclusively relief's against the original defendant No. 1 personally. He had asked for damages and for an injunction restraining the said defendant No. 1, Mr. Bhimbhai, from selling some anklets, which had been attached for failure to pay the Darbar demands.
5. It is quite clear, I think, that this being a personal action, no liability could have descended from Mr. Bhimbhai to his successor in the Talukdari Settlement Office on the pleadings as originally framed, and never since so far as we could ascertain amended. Still less, apparently, could any relief have been obtained upon those pleadings against the 2nd defendant, now appearing on the record as the 1st defendant, the Thakor of Sanand. No relief was asked for against him, and it certainly appears strange that the result of this litigation should have been to award the plaintiff a relief against the defendant No. 1 (appellant) which he (the plaintiff) had never asked for.
6. Going, however, a little more closely into what was probably intended in the Courts below it appears to us that when the Thakor of Sanand was added as a party the Courts contemplated the claim for damages, against the original defendant, Mr. Bhimbhai, being extended, so far as the liability could be shown in him, to the Thakor of Sanand. When we look to the frame of the issues we can entertain no doubt that before the case was tried the Thakor of Sanand was in full possession of the plaintiff's substantial contention against him that these levies by his agent, the Talukdari Settlement Officer, were unauthorized. We do not think, therefore, that the Thakor was in any way prejudiced by the somewhat unusual course of procedure adopted in the Courts below.
7. On the issue which he was interested in contesting, he appears to have had full opportunity of laying before the Court all the evidence upon which he relied. We have been much impressed with the argument that since this issue was merely incidental to the substantial claim for damages, which was personal in the first instance at least to the defendant Bhimbhai, the Thakor of Sanand has not had that full opportunity, to which he was entitled of having the question whether over the whole of his estate levies of this kind are or are not authorized fully investigated and answered. We should have been disposed to give more weight to that contention had we not come to the conclusion, after giving our best attention to the elaborate arguments addressed to us on both sides that the Courts below have come to a wrong decision and that the appellant is entitled to succeed here; so that whatever irregularities are to be detected in the procedure of the Courts below, these irregularities could only have been insisted upon as prejudicing the appellant, and since the appellant has succeeded here, we need not, we think, dwell further upon them.
8. There is this, however, to be pointed out that the Courts below, while decreeing part of the plaintiff's claim against the Thakor, whose estate is still under management, dismissed the suit altogether, as indeed we think, they were clearly bound to do, against the Talukdari Settlement Officer, who had been substituted merely in his official capacity for his predecessor upon whom the tort was charged.
9. Had the decisions of the Courts below been confirmed, it is easy to see, the difficulties might have arisen, as a result of their thus dismissing the suit against the official manager of the Thakor's estate, while decreeing a part of it at least against that estate, still under management.
10. We come now to consider the substantial question in issue between the parties. The Courts below have found that two out of the three contested levies were authorized; and although there has been a cross-appeal, Mr. Shah has conceded that if we are of opinion that the third of these levies is also authorized, it would be taking up our time unprofitably to press his cross-appeal in respect of the former two. We may, therefore, confine our attention exclusively to the levy of Summary, which the Courts below found to have been unauthorized and in respect of which they allowed the plaintiff damages against the appellant.
11. The facts are not in dispute. The levy originated in the year 1869, so that its origin is not in doubt or uncertainty. Since then it has been paid uninterruptedly and without dispute by the present plaintiff. But the Courts below found that the Thakor of Sanand could fall back upon no prescriptive right to continue a levy, which was in its origin unauthorized. That is the sole ground of their decision. Avoiding as far as possible the use of a word of so ambiguous a connotation as ''prescription' or 'prescriptive,' we think that this case falls to be decided under the terms of the Indian Statute of Limitations.
12. First we are to consider whether a levy of this kind is an interest in immoveable property, within the meaning of Articles 142 and 144 of the second Schedule of the Limitation Act. Being a Summary (cess), where it is levied in the Regulation Districts, there could be no doubt or uncertainty as to its true meaning. Where the Summary Settlement was introduced, we shall be speaking now very broadly, the object was to ascertain what persons were entitled to hold their lands free from payment of assessment. Where persons so claiming were able to establish complete titles no difficulty arose; but where the titles although alleged were not clear, those claiming under them were unable to establish them in their completeness, the Summary Settlement allowed them to commute for the payment of assessment in full, upon the basis of their really having had some title, though its precise nature was unascertainable, by the payment of what is called Summary (cess). If that had been the procedure followed in the Talukdari estate of Sanand, then we think there can be no question but that such a commutation in lieu of payment of full assessment would have been such an interest in immoveable property, as for example the Tora Giras Haks. The Tora Giras Haks, which were not more than a money commutation for black-mail, formerly levied on certain villages, have been held by the Privy Council to be an interest in immoveable property. So, we think that the payments under the Summary Settlement fall under the same principle, and are governed by that decision. It is alleged; however, on behalf of the defendant that nothing of the kind occurred in Sanand. Seeing, however, that the levy of this cess almost synchronized with the introduction of the Summary Settlement in the regulation Districts and that its name is clearly borrowed from that Settlement, we entertain no doubt but that the Darbar of Sanand levied or intended to levy it upon the same principles. If so, it is referable in reality to an agreement between the parties, and if that were found as a fact, then there would be no need to go further and rely upon the law of limitation. If, on the other hand, the Darbar, without any preliminary inquiry or agreement, and against the wishes of its subjects, imposed this new cess as merely unauthorized exaction, it appears to us that its position for the purposes of limitation would be still stronger ; and this is what the plaintiff-respondent alleges actually occurred.
13. Now the exaction of a cess of this kind, the incidence of which is upon real property and in no sense upon the person for the time being in possession of it, appears to us to be beyond all doubt an interest in the immoveable property, both within the numerous definitions of that term to be found in our various statutes, and under the principles of the decision of the Privy Council upon the Tora Giras case.
14. Since then this interest in immoveable property, whether it originated in agreement or in unlawful exaction, has been enjoyed by the defendant-appellant for more than forty years, uninterruptedly before suit, we are entirely unable to see how the provisions of Article 144 of the 2nd Schedule of the Limitation Act are to be evaded. We think that there can be no question that if we are correct in holding that this levy is an interest in land, the uninterrupted receipt and enjoyment of it by the defendant-appellant must be adverse, in the fullest sense of that Article, to the plaintiff-respondent. For if it is an interest in land, then the enjoyment of it by the persons claiming it, whether that enjoyment took the form of the commuted money payment or goes the length of actual enjoyment of so much of the immoveable property, seems to us to make no difference for the purposes of limitation and is in each case plainly adverse to the person owning the remaining interest in that immoveable property.
15. In this view the case becomes one of great simplicity. Since, as we said, the enjoyment of the Darbar has been adverse for considerably more than the statutory period and beyond all question to within not less than twelve years of the suit, the right upon which the plaintiff founds his claim against the Darbar is, in our opinion, incontrovertibly time-barred, and -the plaintiff's claim for damages founded on the alleged invasion of this right must be rejected, so far as the defendant-. appellant is concerned. We, therefore, think that the decision of the lower appellate Court was wrong and that the plaintiffs suit must now be dismissed against the Darbar-appellant, as it has already been dismissed against the second defendant, the Talukdari Settlement Officer, with all costs. The cross-second appeal No. 900 of 1909 is dismissed with costs. Also second appeal No. 898 of 1909 is dismissed with costs.