1. This is a reference for the third time by the Local Government of a case which has been decided three times on appeal by the Commissioner of Kumaun against seven persons who are described as the plaintiffs. The opposite party made an application for partition of an area described as 64 1/16 Nalis in Mauza Srikote. There was an objection filed by certain co-sharers to the effect that 38 10/16 Nalis was their hissedari land and therefore must be excluded from the partition. The trial Court states: 'As a question of proprietary title has been raised by them they were ordered to deposit court-fee, which they did.' These persons who were originally defendants in the suit for partition became nominally plaintiffs in the same Court which proceeded to try their claim that they were proprietors exclusively of the particular area of 38 10/16 Nalis which they claimed. Six issues were framed by the trial Court. Only two of these issues were decided : issue 1, that the suit of the plaintiffs was barred by limitation and issue 6 that it was barred by estoppel. The lower appellate Court and the Commissioner of Kumaun as the Court of second appeal upheld that decision. The Commissioner dismissed the suit on the ground of estoppel. A reference was made to this Court and this Court gave an opinion in 1929, but in 1930 the Commissioner affirmed his previous opinion that the suit was barred by estoppel. A second reference was made to this Court and this Court on 14th April 1932 gave its opinion that there was no estoppel and that the proper order for the Commissioner to pass would be to remand the case to the Court of first instance for decision on the merits, unless he holds that the suit is barred by limitation. The Commissioner has found on 19th December 1932 that the suit is barred by limitation. The reference by the Local Government is whether that decree of the Commissioner is correct or not. It would have been more regular if a question of law had been framed but as the decree of the Commissioner proceeds merely on the point of limitation it is sufficient for the purpose.
2. The history of this matter begins in the year 1862 when a settlement was made by Mr. Beckett and there was a dispute between co-sharers of the village Srikote and the co-sharers of another village Uregi, Geeta Ram and Shiv Dutt who were ancestors of the plaintiffs made an application to Mr. Beckett and he ordered certain land to be expunged from the papers of Uregi village and to be entered in the papers of Sribote. The land at that time was only an area of 33 14/16 Nalis. The persons who had then acted in the matter, Geeta Ram and Shiv Dutt, were recorded as sirtans of the land. The next proceeding took place in 1891 and 1892 when there were two orders by the settlement Deputy Collector of a later settlement, the orders being dated 22nd June 1891 and 17th June 1892. An application had been made by Ganga Ram, ancestor of the plaintiffs and Narayan Dutt. The judgments in question are in some Hindi or Pahari dialect and have not been translated, but learned Counsel admits that the effect of these judgments was that an alteration was made in the revenue records and it was entered that the land which had come from mauza Uregi was the sanjarit of the village Srikote and that it was not the exclusive hissedari of the ancestors of the plaintiffs. In 1900 there was a partition, the applicants being Ganga Ram Parmanand, one of the present defendants, and Sri Ram. They applied for a partition of Sanjait land. An application was made by Sridbara Nand, plaintiff, Narayan Dutt, father of Nanda Dutt, Sureshnand and Umesha Chandar, plaintiffs. This application claimed that some of the land was grazing land. The land to which objection was taken was only of a small area of 7-6/16 Nalis. Learned Counsel for the defendants has argued that this area was a part of the area now claimed by the plaintiffs but he has failed to satisfy us on this point. The area now claimed by the plaintiffs is plots 1683 and 1697, area 38-10/16 Nalis. In the 1900 settlement it was held that the claim of the plaintiffs that the small piece of land was grazing land was unfounded.
3. Now it is contended by the learned Counsel that under Article 120, Lim. Act, the present suit of the plaintiffs is barred. It is necessary for the defendants to show that the right claimed by the plaintiffs at present was asserted by the plaintiffs more than six years before the present suit and was denied more than six years before the present suit. Learned Counsel alleges that there was such an assertion and denial in the proceedings in 1891 and 1892 and he claims that those proceedings constitute a bar against the present suit of the plaintiffs. For this he relies on a ruling reported in Akbar Khan v. Turaban (1909) 31 All. 9. In that case the plaintiffs sued in 1904 alleging as their cause of action that in 1895 the name of the defendant had been entered in respect of the property in suit in the revenue papers and the title of the plaintiffs was denied. The cause of action setup more than six years before the filing of the suit, it was held therefore by the lower Courts that the suit was barred-under Article 120. In appeal in the High Court it was urged on behalf of the plaintiffs that in 1901 the plaintiffs had applied for correction of the khewat and-that application was opposed by the defendant and that this gave rise to a fresh cause of action in favour of the plaintiffs. On p. 11 the judgment held:
As in the present case there was no fresh-invasion of the right of the plaintiffs, the rulings referred to are inapplicable,
and further on p. 10:
The refusal to have the entry corrected was a continuation of the original cause of action, namely, the entry of the defendant's name in, the revenue papers in 1895.
4. It cannot be said that in the present-case there is any continuation of the refusal to enter the names of the plaintiffs in 1891 or 1892. The present question is entirely different. The claim of the defendants in the partition suit which gives-rise to the cause of action now for the plaintiffs is a claim that the property of, the plaintiffs should be partitioned, that, is the defendants claim to dispossess the plaintiffs. That is an altogether different matter from the particular entry made in the revenue papers. For this reason we consider that the ruling on which the learned Counsel relies cannot serve his purpose. In that particular ruling on p. 10 there is quoted a judgment in a some, what similar case which was apparently distinguished. In that judgment the decision was that a fresh cause of action did accrue and that the previous decision would not bar the plaintiff suing on a fresh cause of action. This matter has, been somewhat exhaustively dealt with in the ruling reported in Allah Jilai v. Umrao Husain A.I.R. 1914 All. 184. There it was held that whatever cause, of action the plaintiffs might have had on prior dates the order which was passed in 1910 for the assessment of exproprietary rent gave them a fresh cause of action was not barred by limitation. On p. 494 (of 36 All.) there is a reference to a certain case which is somewhat parallel to the present case as follows:
In Purshottam v. Parmanand Masc. Case No. 279 of 1908, certain lands alleged to belong to the plaintiff had been recorded before 1896 in the village papers at the common land of the village. Several years afterwards, in partition proceedings, it was proposed to treat the land in question as the common land of the village and the plaintiff then sued for a declaration of his title. This Court held that the suit was within time having bean brought within six years of the partition proceedings. The learned Judges observed that so long as the plaintiff wag allowed to remain in undisturbed possession it was not obligatory on him to institute a suit for declaration of title.
5. We may also refer to Kali Prasad v. Harbans A.I.R. 1919 All. 383, where a similar principle was laid down. The matter is somewhat similar to the question before their Lord. ships of the Privy Council in Jagat Mohan v. Partab Udai Nath . In that judgment their Lordships observed:
A right in the Maharaja to sue arose in the year 1921 quite independent of any right to sue which may have arisen in him at an earlier date.
6. This shows that their Lordships have recognised that a fresh cause of action may arise to a plaintiff and he may bring a suit, even though a prior cause of action had arisen to him beyond the period of six years' limitation laid down by Article 120. For these reasons we consider that the judgment of the learned Commissioner was incorrect in dismissing the appeal before him solely on the ground of limitation, We consider that the proper order to pass in this case would be that the case should be remanded to the Court of first instance for trial on the issues other than issue No. 1 limitation and issue No. 6 estoppel. Let this opinion be returned to the Local Government. We recommend that costs should abide the result.