1. The respondent in this appeal got his name entered in the Khewat in spite of appellant's objections by order of the Settlement Officer on the 5th of May 1899. On the strength of the entry the respondent, on the 5th of May 1903, instituted a suit for profits of the share in respect of which he had got his name entered. On the 27th of July 1905, while the suit for profits was yet pending, plaintiffs brought the suit, out of which this appeal has arisen, for a declaration of their right to the share and that the defendant had no proprietary right in the share recorded in his name. The suit has been dismissed by the Court of first instance as barred by limitation. In appeal the decree of the first Court was affirmed. The plaintiffs come here in second appeal.
2. The Courts below reckoned as the starting point the order of the Settlement Officer referred to above. No doubt the plaintiffs might, upon this order being made, have instituted a suit for a declaratory decree, but in our opinion they were not bound to do so. The defendant might have taken no steps to enforce any right under the order of the 5th of May 1899, but when he did so, plaintiffs, in our opinion, got a fresh cause of action for asking for a declaratory decree. The suit now brought is in reality one within the last paragraph of Section 201 of the Agra Tenancy Act. We allow this appeal, set aside the decree on the preliminary point, and remand the case under the provisions of Section 562 of the Code of Civil Procedure through the lower appellate Court to the Court of first instance with directions to re-admit it under its original number in the register of pending suits and dispose of it on the merits. The plaintiffs will have the costs of this appeal. Other costs to abide the result.