1. Plaintiff sued to set aside, a decision of the Survey officer passed under Section 25 of (Madras) Act XXVIII of 1860 in regard to the boundary between two villages, and for a declaration that the boundary was as stated by him in the plaint, and for recovery of certain lands within that boundary alleged to have been taken possession of by defendants after the decision of the Survey officer.
2. The defendants pleaded that the suit was time-barred, and denied both the correctness of the boundary proposed by plaintiff and the alleged trespass.
3. The District Munsif dismissed the suit as time-barred on the ground that, under Section 25 of Act XXVIII of 1860 (Madras) as amended by Section 9 of Act II of 1884, a suit to set aside the decision of a Survey officer must be brought within six months of the passing of the decision, whereas the present suit was not brought until the 25th April 1891, though the decision was passed on the 15th September 1890.
4. At the appeal the plaintiff produced before the District Judge a copy of the Survey officer's decision, which copy was prepared in the Survey office on the 25th October 1890. The District Judge thought that this raised a presumption that the suit was in time, or at least threw on the other side the burden of showing that an earlier copy was granted to plaintiff, or that the Survey officer's decision was pronounced in the presence of plaintiff. He therefore remanded the suit for a fresh trial.
5. We observe that these proceedings of the District Judge were not warranted by law. The Act does not require that the Survey officer's decision should be pronounced in the presence of the parties, but merely that they should be informed of it after it has been duly recorded. Neither can the date on the copy raise any presumption at all that it was on that date that the holder was first made aware of the decision. Any number of earlier copies may have been made and given 'to the plaintiff, and it was hot for the defendants to prove that plaintiff had the information earlier; but it was for the plaintiff, when the plea of limitation was raised, to show that his suit was in time.' He took no steps to do this before the District Munsif, and the District Judge should not have admitted the copy before him as proof that plaintiff was first informed of the decision on the date it (the copy) was made. Further the District Judge, even on his own view of the effect of the copy, should not have remanded the suit for a fresh trial, but he should have first called for further evidence as to the date on which plaintiff was informed of the order, and he should then have himself decided the issue as to limitation.
6. Having noticed these irregularities, we follow the further progress of the case. When it was remanded the District Munsif's successor recorded that neither party pressed the question of limitation before him, and he proceeded to dispose of the suit on the merits.
7. Against that decree the plaintiff appealed to the District Judge, but though nine grounds of appeal were stated by the appellant and two grounds of objection were notified by the respondents, no reference was made by either side to the question of limitation, and the District Judge gave a decision on the merits. The fourth defendant now appeals, and the only ground urged before us is that the suit is time-barred for the reason stated by the District Munsif in the first trial. From what has been stated it is manifest that the question of limitation was put aside by the consent of the parties, and that they desired to have the case decided, not with reference to any such plea, but on the merits; and it was so decided in both the Courts below. This being so, it is impossible to allow the appellant now to fall back on the plea which he abandoned in both the lower Courts, and, the more so, since it is a plea dependent on a variety of facts on which findings would have to be obtained before a decision could be given on it. It would be impossible to deal with the litigation of the country if such procedure were countenanced.
8. We confirm the decree of the lower Court and dismiss this appeal with costs.