P.K. Mohanti, J
1. The second appeal is by the plaintiffs against a reversing decree.
The plaintiffs brought the suit as representatives of the villagers of Beruan for correction of the entries in the finally published record-of-rights of the year 1965 in respect of plot Nos. 290 and 178 under Khata No. 340 and for a declaration that the villagers of Bairanga represented by the defendants have no right over the said plots and for some consequential reliefs.
2. The plaintiffs' case was that the suit plots were the Gochar lands of their village and were used as such since time immemorial. They have acquired right to use the suit plots as Gochar lands either by lost grant or by custom. The suit plots correspond to plot Nos. 74 and 97 under Khata No. 175/1 of the Provincial Settlement and plot No. 362 under khata No. 232 of the Current Settlement. In the year 1912, the then Zamindar of the village leased out plot Nos. 74 and 97 to one Rama Chandra Paltasingh and some others. The villagers of Beruan filed O.S. No. 690/1912-I which was decreed and the suit lands were declared to be the Gochar lands and the lease was set aside. Thereafter, the villagers used the said plots as a water reservoir by constructing a cross-bundh. The lands in the plaintiffs' village are irrigated by water of this reservoir and the surplus water flows to the lands of the villagers at Bairanga. The plaintiffs have been maintaining and repairing the cross-bundh. The villagers of Bairanga raised a dispute which led to initiation of a proceeding under Section 147, Cr. P. C. and that proceeding was dropped on 11-11-1915. The plaintiffs' contention is that the defendants have no manner of right, title or interest in the reservoir and its cross-bundh and that they have never taken part in maintaining and repairing the cross-bundh. In the remarks column of the settlement record of rights of 1965, it has been mentioned against plot No. 290 that the villagers of Bairanga have the right of irrigation from the reservoir subject to the condition that they would maintain and repair the cross-bundh. Plot No. 179 has been recorded as a tank. The plaintiffs assert that these entries are wrong and accordingly they filed the suit for correction of the same.
3. The defendants' contention was that although the suit land stood recorded as Gochar it was never used for grazing of cattle as the same always remained submerged under water. It was alleged that the cross-bundh was constructed by the inhabitants of both the villages Beruan and Bairanga and was also being maintained and repaired by them. There is a water channel from the said reservoir to a tank situated on the south of village Bairanga and water from the reservoir goes to that tank through the channel and the lands of that village are irrigated from that tank. According to the defendants, the entries in the record-of-rights of the year 1965 are correct. The defendants also contended that the suit was barred by limitation and was bad for non-joinder of the State Government.
4. The trial court held that the State Government was not a necessary party and that the suit was not barred by limitation. It came to the findings that the plaintiffs have acquired a customary right over the reservoir and the cross-bundh and that the defendants have no such right and that the entries in the present settlement record-of-rights are wrong and need correction.
On appeal, the learned Addl. Dist. Judge came to hold that the entry in the remarks column against plot No. 290 is correct and it needs no correction. It also held that plot No. 178 has been correctly recorded as a tank and there is no need of any correction in the settlement record. It agreed with the trial court that the State Government was not a necessary party, It, however, held that the suit was barred by limitation and that defendant No. 3 having died during the pendency of the suit and the plaintiffs not having obtained permission from the court to prosecute the suit in the absence of the deceased defendant No. 3 the decree passed by the trial court was not enforceable as the suit lost some of its representative character on the death of defendant No. 3 and due to lack of requisite permission from the court. Upon such findings, the learned Addl. Dist Judge dismissed the plaintiffs' suit and set aside the decision of the trial court.
5. The second appeal was admitted for hearing on the questions :
(1) Whether the suit was bad for nonjoinder of the State of Orissa; and
(2) whether the suit was barred by limitation?
6. The plaintiffs-appellants filed a petition, for permission to withdraw from the original suit with liberty to institute a fresh suit in respect of the same subject-matter. The suit is of the year 1967 and it was once remanded by the first Appellate Court. The second appeal remained pending in this Court for about five years. After it was heard at length the plaintiffs sought to withdraw from the suit. Thus the prayer for withdrawal was made at a very late stage and there is no reason why the defendants should be harassed by another litigation. Under Order 23, Rule 1 (1) the plaintiff has a right to withdraw a suit at any stage, but that right is limited to the extent that it does not result in defeating a right which, has already vested in the defendant In the present case the court below has come to the finding that the suit is barred by limitation. It has also found that the defendants have got right to take water from the suit reservoir and that the settlement entries in respect of plots Nos. 290 and 178 are correct. This finding, is based on appreciation of evidence. The object of Order 23, Rule 1, C.P.C. is not to enable a plaintiff, after the rights of the parties have been adjudicated, to obtain an opportunity of commencing a fresh litigation in order to avoid the result of his previous suit. I am, therefore, not inclined to grant leave to the plaintiffs to withdraw from the suit with liberty to sue afresh. The prayer for withdrawal of the suit is accordingly rejected.
7. The suit is for correction of settlement entries and for declaration of a customary right. No right is claimed against the State of Orissa. The plaintiffs do not allege that their custamary right is being resisted by the State of Orissa. Neither party challenges the proprietary right of Government in the suit land. In the absence of the State Government an effective decree can be passed so as to bind the parties and the suit will not fail in the absence of the State of Orissa. The courts below were, therefore, justified in holding that the State of Orissa was not a necessary party.
8. Now coming to the question of limitation it appears that the suit was filed on 27-7-67 against defendants 1 to 5. Along with the plaint the plaintiffs filed a petition stating therein that they represented all the villagers of Beruan and the defendants represented, all the villagers of Bairanga. The prayer made in the petition was that the court be pleased, to grant permission to file the suit under Order 1, Rule 8, C.P.C.' The trial court by its order dated 23-8-67 permitted the plaintiffs to represent the villagers of Beruan and directed issue of notice of the institution of the suit. There was no indication in the order that the plaintiffs were permitted to sue the defendants as representatives of village Bairanga. Though the plaintiffs were permitted to sue as representatives of village Beruan no notice was served on the inhabitants of that village and no public advertisement was also made. Consequently, the villagers of Beruan had no opportunity of knowing whether any such suit had been instituted and who had been selected to represent them in the suit. Thus there was non-compliance of the mandatory provisions of Order 1, Rule 8, C.P.C. The suit was decreed on 26-8-69 and Title Appeal No. 21/86 of 1970/69 was preferred against the decree. The Title Appeal was allowed on 12-10-72 and the suit was remanded to the trial court for proper compliance of the provisions of Order 1, Rule 8, C.P.C. After remand, a public advertisement was made in the daily Samaj dated 21-1-73 and notices under Order 1, Rule 8, C.P.C. were served at both the villages on 4-4-73. The trial court did not however pass any order expressly granting permission to the plaintiffs to sue the defendants as representatives of the villagers of Bairanga.
9. A representative suit cannot be said to have been validly instituted unless and until the mandatory provisions of Order 1, Rule 8, C.P.C. are complied with. It is only when action is taken under Order 1, Rule 8, C.P.C. that the suit is properly brought against the defendants.
10. Under the provisions of Section 42 of the Orissa Survey and Settlement Act, 1958 a suit for correction of settlement entry has to be filed within three years from the date of publication of the record-of-rights. In the present case, the record-of-rights was finally published on 7-3-65. So the last date for filing the suit was 7-3-68. The provisions of Order 1, Rule 8, C.P.C. not having been complied with, the suit cannot be said to have been validly instituted against the defendants by that date. The suit was, therefore, barred by limitation.
11. There is, therefore, no merit in this appeal and it is accordingly dismissed with costs.