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Ram Nandan Rai and anr. Vs. Tileshar Rai and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1937All764
AppellantRam Nandan Rai and anr.
RespondentTileshar Rai and ors.
Excerpt:
- - as there can be no question of restitution in cases like the present, it appears to me that i am bound to hold that time runs from the date of the final order......that the parties were concerned in certain partition proceedings and in those proceedings the present plaintiffs raised questions of proprietary title and on 1st september 1931 the assistant collector in whose court the partition proceedings were taking place, passed an order directing the present plaintiffs to file a suit to establish their title to the property in question within three months. this he did under the provisions of section 111, land revenue act.2. the plaintiffs appealed against this order and on 27th november 1931, that is before the expiry of the period of three months, the collector set aside the order of the assistant collector and directed the latter to enquire himself into the question of proprietary title. after this order, of course, it was unnecessary for.....
Judgment:

Harries, J.

1. This is a plaintiffs' appeal against concurrent decrees of the Courts below dismissing their claim for a declaration. The plaintiffs brought these proceedings claiming a declaration that they were the owners of certain property. A number of defences were raised by the-defendants, but it is only necessary to consider one of them and that is a plea that the suit was barred by time. It appears that the parties were concerned in certain partition proceedings and in those proceedings the present plaintiffs raised questions of proprietary title and on 1st September 1931 the Assistant Collector in whose Court the partition proceedings were taking place, passed an order directing the present plaintiffs to file a suit to establish their title to the property in question within three months. This he did under the provisions of Section 111, Land Revenue Act.

2. The plaintiffs appealed against this order and on 27th November 1931, that is before the expiry of the period of three months, the Collector set aside the order of the Assistant Collector and directed the latter to enquire himself into the question of proprietary title. After this order, of course, it was unnecessary for the plaintiffs to file any suit, because the Appellate Court had directed that the lower Court was to decide the matter itself. However, the present defendants being dissatisfied with the Collector's order appealed to the Com-missioner who, on 25th July 1932, that is over ten months after the original order was passed, reversed the order of the Collector and restored the order of the Assistant Collector. No application was made to the Commissioner to extend the time and it is obvious that if time ran from the date of the original order the plaintiffs could not possibly have brought this suit after the reversal of the Collector's order by the Commissioner. The plaintiffs appealed against the decision of the Commissioner to the Board of Revenue, and on 3rd December 1932 the Board of Revenue dismissed the appeal and again it has to be noted that no further time was given to the plaintiffs to file the suit.

3. The present suit was filed by the plain, tiffs in the Civil Court on 14th February 1933. As I have stated, both the lower Courts have held that the suit is barred by time and have consequently dismissed it. In second appeal, it has been argued before me that the period of three months to bring this suit should be computed not from the date of the original order of the Assistant Collector but from the date of the final order in these proceedings, viz. the date of the order of the Board of Revenue dismissing the appeal from the Commissioner and upholding the original order of the Assistant Collector. This date is 3rd December 1932, and if that be the proper date, then this suit is within time. I may observe at this stage that on 27th October 1932 an application was made to the Assistant Collector for further time and he gave a further three months from 19th January 1932. It has not been seriously contended that the Assistant Collector could extend the time and it is difficult to understand how he had jurisdiction to do so. However, he did extend the time and this suit is brought within that time.

4. In my view the period of three months must be calculated from the final order of the Board of Revenue dated 3rd December 1932, otherwise a grave injustice would be done to the plaintiffs. The plaintiffs were originally given three months from 1st September 1931, but when that order had been reversed by the Collector on 27th November 1931, it became unnecessary for them to file any suit. If time is to be computed from the date of the original order as argued by the respondents, then by securing a reversal of the order of the Assistant Collector the plaintiffs put themselves completely out of Court. The respondents argue that even when the plain, tiffs had obtained a reversal of the Assistant Collector's order, they ought to have filed this suit, but that is a strange position. The order of the Collector re-versed the order of the Assistant Collector and directed the latter to decide the question of proprietary title himself. In those circumstances, it cannot be said that the plaintiffs should and could have brought a suit in the civil Court to determine this matter. At the date of the Commissioner's decision on 25th July 1932 it was quite impossible for the plaintiffs to comply with the original order and it was equally impossible on the date of the decision of the Board of Revenue. In my judgment the time to bring this suit must be computed from the final order made in the proceedings. The order of the Assistant Collector was superseded by the order of the Collector which in due course was superseded by the order of the Commissioner. The latter's order was finally superseded by the order of the Board of Revenue which restored the original order directing the plaintiffs to bring a suit within three months. In my judgment the effect of these orders superseding earlier orders is to give the plaintiffs three months from the date of the last order.

5. It has been argued that in pre-emption cases where plaintiffs are ordered to deposit money in Court within a certain period, such period is not enlarged by the plaintiffs filing appeals. The position with regard to payment of the money is very different from the present case. Money deposited in Court or paid to a person can at least in theory be recovered if the order under which the money is deposited or paid is reversed. The Code provides for restitution in case of reversals of decrees for example, but in the present case there is no question of restitution. If time in the present case runs from the date of the original order, the plaintiffs lost their rights for ever when the three months had expired, although at that time they had a decision of a superior Court in their favour that it was unnecessary for them to file a suit. As there can be no question of restitution in cases like the present, it appears to me that I am bound to hold that time runs from the date of the final order.

6. No case in point has been cited to me, but I have been referred by counsel for the appellants to the case in Venugopal Mudali v. Venkatasubbiah Chetty A.I.R. 1916 Mad. 883. The facts of that case were as follows : A petition was filed by defendant 2 objecting to the attachment of certain properties as belonging to defendant 1 in execution of a decree passed by the High Court on its Original Side. The petition was allowed in favour of the claimant by an order passed by a single Judge of the High Court on its Original Side. The plaintiff, who was the decree-holder, filed an appeal against the order to the High Court under the Letters Patent and the original order was confirmed on appeal. The plaintiff brought a suit under Order 21, Rule 63, Civil P.C., to establish his right to attach the property more than one year from the date of the original order but within one year from the date of the order passed on appeal. It was held that Article 11, Lim. Act applied to the case and that the suit was not barred as the starting point of limitation under Article 11 was the date of the order passed on appeal. It was further held that the word 'order' in Article 11, Lim. Act, should be construed as meaning the only subsisting order in the case which is the appellate order in accordance with the recognized principles of jurisprudence.

7. The facts of the Madras case Venugopal Mudali v. Venkatasubbiah Chetty A.I.R. 1916 Mad. 883 are some what different from the facts in the present case, but it appears to me that the principles applied in the Madras case1 apply equally to the present case. In the Madras case1 the plaintiff was directed by statute to bring his suit within one year of the date of the order and the term 'order' was held to mean the appellate order, that is, the final order. It was held that the appellate order superseded the earlier order and therefore time would run only from the appellate order. In the present case also it appears to me that the various-appellate orders superseded the order immediately preceding them and that being so the period of three months must be calculated from the final order in the case, viz. the order of the Board of Revenue.

8. I therefore hold that this suit was brought within time and consequently should not have been dismissed upon that ground. The lower Appellate Court did not go into any of the other matters raised in the suit and of course it is still open to the defendant, respondents to uphold the decision of the trial Court upon other grounds. I therefore allow this appeal and set aside the decree of the lower Appellate-Court and remand the case to the lower Appellate Court to be heard and determined upon the merits according to law. The appellants must have the costs of this appeal, but the costs of the hearing in the lower Appellate Court and of the Court of first instance will abide the decision of the case in the lower Appellate Court. The court-fee paid must be refunded to the appellants. Leave to appeal under the Letters Patent is granted.


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