1. The dispute in this case is about a plot of land, shown as plot No. 655 in the village papers prepared at a revision of settlement held in the year 1887. We must take it, as found by the lower Appellate Court, that in the records then prepared this plot of land was, to the knowledge of the litigants in this case, or their predecessors-in-title, recorded as the sole and separate property of the defendants. In the year 1914 these defendants presented an application for partition, in the course of which they alleged that this plot No. 655 belonged to them in severalty, was in their separate possession and should be assigned to their Mahal. The present plaintiffs, who are the remaining co-sharers in the village, objected to the effect that a mistake had been made in the preparation of the Settlement Records of 1887, that as a patter of fact plot No. 655 represented a portion of the inhabited site of the village and, along with the rest of the said inhabited site, was the joint property of all the co-sharers, including themselves and the defendants. They alleged further that they were, and continued to be, in joint possession along with the defendants of the aforesaid plot No. 655, This was an objection involving a question of proprietary title within the meaning of Section 111 of the United Provinces Land Revenue Act, III of 1901. Acting under Clause 1(b) of the aforesaid section the partition Court required the present plaintiffs to institute within three months a suit in the Civil Court for the determination of the question of proprietary title, thus involved. The present suit was brought within the prescribed period of three months. It was resisted on a variety of pleas, all of which were determined by the trial Court in favour of the plaintiffs, and the learned Munsif accordingly granted the latter a declaration of title as prayed.
2. In appeal the learned District Judge has dismissed the suit upon a finding that it is barred by limitation. At the beginning and at the end of his judgment he discusses two other matters, but I am not at all clear what findings he intends to record concerning them. He seems to have realised that it lay upon the plaintiffs to prove both their title as joint owners and their possession as joint owners up to the date of the institution of the suit. In the first part of his judgment he seems to be discussing the evidence on the question of possession and to comment upon the same in a sense favourable to the plaintiffs claim. I cannot, however, say that there appears to me to be any clear finding on this question of possession.
3. At the end of the judgment the lower Appellate Court remarks that, inasmuch as the plaintiffs, or their predecessors-in-title, attested as correct the settlement papers prepared in the year 1887, they are now estopped under, the provisions of Section 115 of the Indian Evidence Act from asserting that there was at that time a mistake made in respect of the proprietary title to plot No. 655. This finding cannot be sustained; there is nothing on the record, to bring the case within the operation of Section 115 pf the Indian Evidence Act, or to show that by reason of anything done by the plaintiffs at the Settlement of 1887 the defendants, or their predecessor-in-title, were induced to alter their position in any way to their own disadvantage.
4. There remains, therefore, the question of limitation.
5. The case is not free from difficulty, and of the authorities quoted by the learned District Judge the case of Akbar Khan v. Turaban 1 Ind. Cas. 557 : 31 A. 9 : A.W.N. (1908) 252 : 5 A.L.J. 637 : M.L.T. 444, is to some extent in favour of the decision arrived of. That cage bas been considered in a number of subsequent rulings and, so far as I am personally concerned, I stand by the view expressed by me in Rahmatullah v. Shamsddin 21 Ind. Cas. 609 : 11 A.L.J. 877, am fortified in my opinion by the fact that this case has since been cited with approval in the Calcutta High Court and that it seems to be in accordance with the decision of a Bench is this Court in Allah Jilai v. Umrao Hussain 24 Ind. Cas. 535 : 36 A. 492 : 12 A.L.J. 810. My opinion is that the proceedings taken in the partition Court, whereby the Plaintiffs found themselves, if their statements of fact are true, for the first time in danger of being actually dispossessed of their joint ownership over plot No. 655, give rise to a fresh cause of action altogether independent of any cause of action which may have been furnished to the plaint-ills by the settlement entry made In the year 1877. The new cause of action came into existence, either on the slate on which the present defendants filed their application for partition, or on the date of the order passed by the partition Court under Section 111 of the Local Act III of 1901 requiring the plaintiffs, under penalty of forfeiting their title and incurring dispossession, to institute a suit like the present within a limited period hold, therefore, that this suit is not barred by limitation and that the plaintiffs claim is not liable to dismissal on any of the grounds put forward in the judgment under appeal.
6. I would set aside the order and decree of the lower Appellate Court and send the case back to that Court in order that it may be readmitted on to the file of pending appeals and disposed of on the merits. Under the circumstances I think it fair to both parties that the costs of this appeal, which include fees on the higher scale, should abide the result of the suit.
I Agree with my brother's judgment.