1. The suit out of which this second appeal arises was brought by six plaintiffs who are now the registered proprietors of Panduru Mallavaram estate against the Secretary of State for India in Council (defendant l) and defendants 2 and 3 who are owners of certain lands for an order directing the separate registration of the defendant's land from the estate of Panduru Mallavaram. The villages of Panduru and Mallavaram were themselves originally part of the permanently settled estate of Uratla. In 1867 one Sagi Jagannadaraju became the proprietor of Uratla. In 1875 he granted these villages to his maternal uncle K. China Narasaraju by Ex. H-1 dated 7th April 1875. Portions of the estate passed by alienation to some of the present plaintiffs under Exs. P-F-4 dated 1917'and 1925 respectively. These two villages were separatly registered in 1875 (vide Ex. A dated 11th December 1875). Ex. B is the proceedings of the Board of Revenue dated 15th September 1875 fixing the peishcush on the subdivided estate.
2. In 1852 certain lands in the village of Mallavaram, now in the possession of the contesting defendants, were alleged by them to have been given to one Pushpati Subadrayya by the then proprietrix of Uratla in exchange for some other lands. Though the exchange is not clearly proved, the Subordinate Judge found that the defendants are the owners of the lands. On 18th May 1903 the plaintiffs' predecessor-intitle as proprietor of Panduru Mallavaram applied to the Collector of Vizagapatam for the separate assessment and registration of the defendant's land. The Collector issued a notice under Section 2, Act 1 of 1876. The father of defendants 2 and 3 did not consent to the separate assessment and registration and the Collector accordingly rejected the application on 20th June 1904.
3. Again, in May 1924, the present plaintiffs applied to the Collector for separate registration and defendants 2 and 3 did not agree and the Collector refused to allow the separate registration by proceedings dated 13th.October 1925 (Ex. G). The plaintiffs therefore bring the present suit praying that the Court may direct the separate registration of the suit land from the Panduru Mallavaram estate. The District Munsif of Yellamanohilli decreed the suit and the Subordinate Judge on appeal confirmed that decree. Defendant 3 filed this second appeal. Defendant 2 did not appear in the Court below and it appears that he is not interested in the suit land. Three questions were raised before the Courts below and were all decided against defendant 3 and they are repeated before us.
4. The first question raised is that, the alienation of the suit lands to the defendants' predecessor-in-title in 1852 by the proprietrix of Uratla was not such an absolute alienation as to entitle the present plaintiffs to get them separately registered under Madras Act 1 of 1876. Section 1 of that Act provides that the alienr or alienee of a permanently settled estate or the representative of any such alienor or alienee may apply to the Collector for its separate assessment in respect of land revenue. But it has been held in Maharaja of Vizianagaram v. Collector of Vizagapatam A.I.R. 1915 Mad. 535, by Wallie, C.J., and Kumaraswami Sastri, J., that grants of lands in permanently settled estates subject to a small rent such as jodi, kattubadi or poruppu are not liable to be proceeded against under Madras Act 1 of 1876. They followed a previous unreported decision of Miller and Monroe, JJ., in A. Section No. 141 of 1905 from the same District.
5. In the two decisions referred to, the alienated lands were subject to payment of kattubadi to the zamindar and hence it was held that the zamindars were not entitled to get them sub.divided. But in the present case the land alienated in 1852 was not subject to any kattubadi. The plaintiffs therefore alleged that the defendants are the absolute owners and that they are entitled to a subdivision of the suit land, and the defendants argue that the suit lands were obtained by exchange for some inam lands. The Subordinate Judge finds, the defendants are the absolute owners of the suit lands. We agree with this conclusion.
6. The second point argued is that as the suit lands were alienated in 1852 to the defendants' predecessor, and the Panduru Mallavaram estate was carved out of the Uratla estate in 1875, the present plaintiffs are not entitled to claim a separate registration and subdivision of the snit lands. That the suit lands were alienated prior to the carving out of the Pandaru Mallavaram estate is true. But whether the proprietor of the Panduru Mallavaram estate or whether the proprietor of the Uratla estate is entitled to the subdivision depends upon how the suit lands should be regarded. Geographically the suit lands are in the village of Mallavaram which is a part of the Panduru Mallavaram estate. If the Board of Revenue in fixing the peishcush of the Panduru Mallavaram estate in 1875 regarded the suit lands as part of the Panduru Mallavaram estate for the purpose of subdividing that estate from the main Uratla estate though as a matter of fact they had been previously alienated in 1852 then the proper persons to obtain the separate assessment of the suit lands would be the owners of the Panduru Mallavaram estate, namely the plaintiffs. But if the suit lands were excluded from the Panduru Mallavaram estate in fixing the peishcush in 1875 and only the income of the rest of the estate was considered for taking the proportions then the proprietors of Uratla would be the persons to obtain the separate assessment and subdivision of the suit lands.
7. Now on turning to Ex. B we find this: that though the Collector excluded from the income of Panduru Mallavaram the Dharmila inams, i.e., the inams granted after the permanent settlement, the Board included them and accordingly fixed the peishcush at Rs. 952.14-11 instead of Rs. 938-14-2 as recommended by the Collector. So long as the Dharmila inams had not been separately ?registered, they have to be regarded as .part of the Mallavaram estate, the Board having proceeded on that footing. That being so, the present plaintiffs are sntitled to maintain the suit.
8. The third question argued before us is the question of limitation. It is argued that the separate registration was refused by the Collector so early as 1904, that the cause of action accrued to the plaintiffs or their predecessors immediately after the Collector's refusal in 1904 and the suit ought to have been filed within six years after the Col., lector's refusal and it is therefore barred. The reply for the respondents is that there is nothing to prevent the proprietor from making further applications before the Collector for a subdivision after 1904. Under the Act, so far as the Collector's functions are concerned, his duty is to refuse registration if the defendants do not agree. His work is of a mechanical nature and does not partake of the nature of a decision. If there s a decision by him and the suit before the civil Court is in the nature of an appeal from his decision then no doubt his order would become final and conclusive against the plaintiffs. It would have decided a matter of substantial right and if no immediate action is taken the plaintiffs' suit will be barred but the Collector's order is not in the nature of a decision. There is nothing to prevent the plaintiffs from making a fresh application.
9. The defendants may now agree, and simply because the owners of suit lands in 1904 did not agree it does not follow that they may not agree in 1924. But apart from the possibility of defendants agreeing to a separate registration the matter can be looked at in a different way. The only effect of separate registration is to take a portion of the burden on the estate, i.e., Panduru Mallavaram, from its owners and transfer it to owners of the alienated lands, i.e., the defendants. So long as the subdivision is not done the owners of the main estate have to go on paying the full peisbcush. Now, even if they go on paying the full peishcush, i.e., submitting to the whole burden without seeking separate registration for any length of time it cannot be urged that there is any bar of limitation against the plaintiffs' rights. Thus in the present case though the predecessor of the plaintiffs was bearing the full burden from 1875 to 1904, i.e., 28 years, it cannot be suggested that their claim in 1904 was barred and supposing they filed first application in 1924 it cannot be argued that; it is barred. So that the objection to the defendants' right is not an objection based on lapse of time, for we see that for whatever length of time the plaintiffs bear the whole burden and the defendants enjoy the land free of the burden there is strictly no limitation to the plaintiffs' claim for subdivision. How can then there be any difference in the matter simply because the plaintiffs made an effort before the Collector in 1903 and did not bring a suit within six years? The defendants while conceding that there is no bar of limitation if no prior petition was filed before the Collector still say that the cause of action in the civil suit is the Collector's refusal and that therefore the suit must be filed within six years. But if the matter is put in this way, the cause of action for this suit is the Collector's refusal of 1924 and therefore the suit is not barred by limitation. If a suit based on the Collector's refusal of 1904 be filed more than six years from 1904, it may be, it is barred by limitation. But the present suit is not that.
10. To this the learned advocate for the appellant says that the plaintiffs are not entitled to file a second application before the Collector for the purpose of conferring themselves another cause of action. He may be right in this contention if a finality is given to the prior order of the Collector. When there is no such finality I do not see any objection to filing a second application. Between 1903 and 1924 both the parties are enjoying the lands but subject to a common burden. The common burden is such that by its very nature it is capable of separation and being split up and because an attempt to split it up was made in 1903 but was not pursued, it cannot be said that the defendants have acquired a right by prescription that it should never be split up at all, for Section 29, Lim. Act, does not apply. If the argument of the defendants is that because it was once attempted and lost therefore a second attempt cannot be made, it is really an objection in the nature of res judicata and not in the nature of limitation. But res judicata there cannot be because there is really no decision by the Collector. The Collector's duty is merely mechanical and to give effect to the objection of the appellant is to give it a greater effect than is intended by the Act.
11. Again, the matter might be looked upon iii a different way. Even before Madras Act 1 of 1876 was passed there was a right in the alienor or the alienee of lands from a permanently settled estate to obtain a subdivision of the alienated lands. This right was implied in Sections 3 and 9 of the Permanent Settlement Regulation 25 of 1802, before the passing of the Madras Act 1 of 1876 and it was held by this Court that if a Collector refused a subdivision the alienor or alienee is entitled to a redress in a civil Court : Ponnuswami Thevar v. Collector of Madura (1866) 3 M.H.C.R 35. The object of Madras Act 1 of 1876 is not to confer a right upon the alienor or alienee, but to separate the duties of the civil and revenue-Courts in respect of separate assessment. It would seem that prior to Madras Act 1 of 1876 where a Collector refused separate registration there was a right of action before a civil Court and the civil Court could make the separate assessment and direct the separate registration. The legislature while desiring to keep up the jurisdiction of a civil1 Court to direct separate assessment when the Collector refuses it or to declare that there should be no separate assessment where the Collector has granted it, decided that the actual work of subdivision in settling the proportion of peishcush between the main estate and the alienated portion should be worked up by the Collector and it is not for the purpose of conferring the right (which formally existed) that Madras Act 1 of 1876 was passed. The passing of this Act and the mechanical act of a Collector in refusing to register can make no difference in the rights of parties. The object of the procedure prescribed by Act 1 of 1876 is that after obtaining a declaration in a civil Court the party has got to go to the Collector again to obtain the settlement of the actual figures. Again the matter may be looked1 at in another way.
12. In Ananda Razu v. Viyyanna (1892) 15 Mad. 492, which was a suit for separate assessment of a portion of an inam, it was held that there is no bar of limitation. It is true that there is no statute corresponding to Act 1 of 1876, in the case of inams, but if the object of Act 1 of 1876 is as described above, that makes no difference. But otherwise the matter is similar, for though one person goes on submitting to the whole burden for bow. ever long a time and the other person enjoys his portion free of the burden, there is no objection to getting the bur. den subdivided in the case of inams and if there is no bar of limitation for the subdivision of quit rent in the case of inams what difference can it make for the subdivision of peishcush? The matter is similar in both cases. It would appear that even if there is no subdivision if one person pays the whole peishcush to which his own estate and the alienated portion are jointly liable he can recover a proportionate part of the amount paid by a suit for contribution : vide Rajah of Vizianagaram v. Rajah Sethuaherla Somasekhararaz (1903) 26 Mad. 686. But it would seem that that is possible only where the payment is made to save the whole estate from sale. But that shows that there is also in the owner of one estate an inherent right to get a contribution from the owner of the alienated portion to a proportionate part of the peishcush. Such a right must involve a right to get it split; up. If such a right cannot be lost by any amount of inaction it cannot be lost by any adverse order of the Collector mechanical in its nature. I therefore hold that the suit is not barred by limitation. In the result the second appeal is dismissed with costs of the plaintiffs-respondents.
13. S.A. No. 502 of 1929. - This second appeal is connected with S.A. No. 450 of 1929. In this case also the plaintiffs are the registered proprietors of Panduru Mallavaram estate. Defendants 3 and 4 are the contesting defendants, defendant 2 not having appeared. In this case the land in respect of which subdivision is sought was granted by a patta dated 8th April 1859 (Ex. 4) executed by Subhadrayya, the then proprietrix of the Uratla estate, to B.V. Narasimharaju from whom it passed to the present defendants. This land also is situate in the Mallavaram village. The same three points that were urged in the connected second appeal were also urged in this case. So far as the second and third points are concerned my judgment in the other second appeal governs this. Only the first point in respect of which a distinct argument has been urged has to be dealt with.
14. It is contended that the defendants are not the absolute owners of the suit lands because it has been argued that Ex. 4 does not confer the right to the minerals in the suit lands on the grantee, and in respect of this contention a series of Calcutta decisions have been cited. In Hari Narayan Singh Deo v. Sriram Chakravarti (1910) 37 Cal. 723, it was held that the lessees of a village in a zamindari were not entitled to the mineral rights unless they were expressly granted. The lease was subject to an annual rent of rupees 22-15-6. The decision in Durga Prasad Singh v. Rraja Nath Bose (1912) 39 Cal. 696, related to a case of Digwari tenure and it was held that though the Digwari tenure resembled in some respects the Ghatwali tenure they were different in respect of minerals. As to the rights to the minerals it was held that though the Ghatwal was entitled to the minerals under Act 5 of 1859, the Digwar was not so entitled, the zamindar being the per. son prima facie entitled to them. In Shashi Bhusan v. Jyoti Prasad A.I.R. 1916 P.C. 191, a village was granted at a fixed rent prior to the Permanent Settlement by the Bajah of Pachete. The grant was described as a Talabi Brahmottar grant. According to the decision of the Privy Council modifying the definition in Wilson's Glossary such a grant is land granted either rent-free or on a fixed rent to Brahmins for their support and that of their descendants as a reward for sanctity or to enable them to devote themselves to religious duties and education. The Privy Council found that the tenure was permanent and heritable. The statement of facts at p. 586 shows that the tenure was subject to the payment of a fixed rent.
15. In Rajkumar Thakur Giridhari Singh v. Megh Lal Pandey A.I.R. 1917 P.C. 163, it was held that the lessee under a mokarari lease does not acquire the rights to minerals unless they are expressly transferred. Though the patta purports to grant the lease 'with all rights' it appears that it was subject to an annual jumma of Bs. 59 and some payment in kind. In Raghunath Roy v. Durga Prasad A.I.R. 1919 P.C. 17, the Rajah of Jheria made a Brahmottar grant of a mouzah in 1791. It was held that the grantee did not acquire the mineral rights in the mouzah. The patta says: 'You should enjoy it comfortably by cultivating, and getting the same cultivated by others.' In this case the language of the patta is somewhat similar to that of Ex. 4. The appellant therefore strongly relied upon this decision. But the grant in that case was described as a Brahmottar grant and the word Brahmottar implies some kind of tenure between the grantor and the grantee though in other respects full rights are conferred on the grantee. At p. 102 their Lordships say:
But the patta in question here was a grant by a zamindar in India of a holding creating a tenure within his zamindari, and must be construed as such grants by zamindars have been construed by the Board.
16. Again at p. 104 it was observed:
In the present suit no evidence was produced as to what was done at the Permanent Settlement in respect of Mouzah Chandkuia, but the absence of suoh evidence does not lead to a presumption that the zamindar had not then vested in him the mineral rights in Mouzah Chandkuia.
17. They therefore held that only the Baja was entitled to the mineral rights in the Mouzah. The decision in Rajeswar Prasad Bhakat v. Bhupendra Narain : AIR1927Cal956 , refers to a Patni Taluk, patni being a permanent transfer of the interests in the zamindari subject only to the payment of rent. It was held that the patnidar was not entitled to remove mounds of earth out of the patni because such a right was similar to mineral rights. As to all these decisions the respondents distinguish them on she ground that they relate to tenures and wherever there is a tenure whether subject to a rent or not subject to a rent, the reversion being in the Zamindar, the grant cannot be considered to be such an absolute grant as to include the right to minerals; but where there is no tenure, the right to minerals also passes and the grant must be regarded as an absolute grant in every sense of the term. To this the appellant replies by relying oil Govindanarayan Singh v. Shyamlal Singh , another decision of the Privy Council in which the junior branch of a family held a village of the zamindari from 1700 and the representative of the junior branch paid to the zamindar an annual sum of Rs. 21-4-0 in respect of it. The plaintiff's case was that the grant was a khorposh or maintenance grant and it was reaumable by custom. Whether it was resumable or not the annual payment to which it was subject shows that it was also a case of tenure. At p. 1195 their Lordships observe:
If the village has been subject to an annual payment to the zamindars, their Lordships must conclude that the burden which is upon the respondents has not been discharged. The payment may, in its inception, have been a contribution towards the revenue assessed by the paramount power upon the parent estate, but it may equally as well have been a rent charge reserved to the grantor.
18. An argument by the junior branch relying on a former partition was found against by the Privy Council. Finally another argument based on adverse possession was held not to be conclusive as to sub-soil rights, the enjoyment being only of surface rights. The latter two grounds being excluded the prima facie position, i.e., tenure, remained. It seems to me therefore that this case also is distinguishable on the ground that it is a case of tenure.
19. But apart from it, it seems to me that the right to subdivision should not be made to depend upon the test whether the grantee has got the right to minerals. If in all other respects the grant is absolute 1 think the grantee is entitled to subdivision. In the case of inams it is now established in this Presidency that the inamdar has no right to minerals, Secy, of State v. Srinivasa Chariar A.I.R. 1921 P.C. 1, and yet as between the main inamdar and an alienee there can be a suit for subdivision of the quit rent: vide Ananda Razu v. Viyyanna (1892) 15 Mad. 492. That being so, there is no reason why the same principle should not be applied in the case of an alienee of a zamindari; it is unnecessary to decide in this case whether the defendants are entitled to the minerals in the land granted. The result is that the second appeal fails and is dismissed with costs of the plaintiffs-respondents.
Venkatasubba Rao, J.
20. The first question that arises is, whether the plaintiffs are entitled to apply, under the Act for separate registration.
21. The Zamindar of Uratla made an absolute grant in 1875 of the village of Panduru and Mallavaram oomprised in his estate, in favour of his maternal uncle Sree Bajah Kakarlapudi Chinna Narasaraju. We are concerned in these second appeals with Mallavaram alone. The defendants in S.A. No. 450 of 1929 are in possession of some lands in that village in virtue of a transaction of 1852; similarly the defendants in S.A. No. 502 of 1929 obtained certain other plots in 1859. The grant in favour of the maternal uncle was thus subsequent to the alienations by the proprietor of Uratla, under which the defendants claim. The date of the grant is 7th April 1875, and later, in that year, on an application made under Madras Land Revenue Assessment Act (Act 1 of 1876), the Collector registered the villages in the name of the alienee (the maternal uncle) and apportioned the assessment payable thereon. The final order runs thus:
At the request of the proprietor of the Uratla estate and with the sanction of the Board of Revenue communicated in their proceedings dated 15th September 1865, No. 2574, the villages of Panduru and Mallavaram have this day been subdivided from the Uratla proprietary estate and registered in the name of Sri Baja Kakarlapudi Chinna Narasaraju Garu, the peiahcush payable on the villages subdivided as aforesaid being apportioned and fixed at rupees 1,608-14-11 per annum.
22. The Board's proceedings to which reference is made in the aforesaid order, show that in the proposal originally submitted by the Collector, the value of the alienated inams had not been taken into account. The peishcush recommended by him on that footing in regard to Panduru was Rs. 938-14.2, and in regard to Mallavaram, Rs. 507-9-3. The Board observes:
The Collector has not taken the value of inams granted subsequent to the permanent settlement into account in calculating the assets upon which the peishcush has to be apportioned. With the necessary correction of this account the peishcush on the subdivided estates will be as shown below.
23. In other words, the Board revised the Collector's valuation, by including the subsequently alienated inams in the villages in question. Thus they raised the peishcush fixed on Panduru from Rs. 938-14.2 to Rs. 952-14-11 and on Mallavaram from Rs. 507.9-3 to Rs. 656. The total of. the two figures as revised is Rs. 1,608-14.11, the sum mentioned in the final order of the Collector quoted above, apportioning the peishcush. The plaintiffs acquired the villages in question in or about 1917, and they applied under the Act, as against the defendants, for separate registration and apportionment. Section 1 of the Act provides:
The alienor or alienee of any portion of a permanently settled estate, or the representative of any such alienor or alienee, may apply to the Collector of the District in which such portion is situate for its registration in the name of the alienee and for its separate assessment in respect of land revenue.
24. The defendants' title, as I have said, is derived from the alienations made by the Zamindar of Uratla previous to the grant of 1875. On the date of the grant the Zamindar's position was that of an alienor and the defendants were his alienees. The Zamindar, the alienor, having subsequently made a grant to the plain, tiffs' predecessor-in-interest, the plaintiffs must be regarded as the alienor's representatives. The terms of the Section are thus satisfied. The defendants contend that the section does not apply as the alienation in their favour was not subsequent to but prior to the separate registration of 1875. I fail to see how this makes any difference. The section does not say 'the alienor or his alienee,' the argument overlooks that the word 'his' is not there. The application was made by the plaintiffs, the alienor's representatives, against the defendants, the alienees. There is thus no legal bar as is contended for the defence. It is next contended by the defendants-in S.A. No. 502 of 1929 that they are not the owners of the property within the meaning of that expression in Section 2 and that the Act does not there. fore apply. Their title to the land was obtained under Ex. 4 dated 12th December 1863, which is in the following terms:
Patta written and given on Friday, 5th Chaitra Sudda of the year Siddharti, by Sagi Subadrayya to Bhupatbiraju Venkatanarasimharaju; I have this day given to you the land of the total extent of 3/16 plus 1/64 bearing a kist of Rs. 44 which is made up of wet land of the extent of about 8/16 being the eastern portion in Boorugumanu Isthuya in Mallavaram village, Uratla, Hunda within our zamindari and of the dry land of the extent of about 1/64 known as Mariamunapatti Mukha in Mallavaram old village.
25. Then the clause may be translated thus:
Therefore you may as you please render the land fruitful and enjoy the fruits thereof heriditarily from son to grandson and so on.
26. The argument is put thus. Under this deed the right to the minerals does not pass, and in the absence of such right the grantee does not possess full owner, ship. The following passage in the judgment of the Privy Council in Baghunath Roy v. Baja of Jheria A.I.R. 1919 P.C. 17 is strongly relied upon by the defendants' learned Counsel:
The construction of the patta of 1791 contended for on behalf of the plaintiffs would doubtless be the construction to be placed upon it if the patta had been a grant of freehold lands in England by an owner in fee, but the patta in question here was a grant by a zamindar in India of a holding creating a tenure within his zamindari and must be construed as such grants by the zamindars have been construed by the Board.
27. In that case what was granted by the Zamindar was a village rent free brahjnottar land. The grant contained the words that the grantee was 'to enjoy it comfortably by cultivating and getting the same cultivated by others.' It was held that the subjacent minerals did not pass to the grantee, After reviewing the previous decisions of the Board their Lordships held that the principle applied as much to rent tenures (the case before them being one such) as to grants of tenures at fixed rents. The defendants go on to contend that under these decisions, the mineral rights did not pass to them by the instrument and that they cannot therefore be regarded as the 'owners.' In answer, the plaintiffs urge that these authorities, if carefully examined, would show that in each case the grantee's sub-soil rights were negatived on the footing that the grant was only of a tenure, but what was conveyed in the present instance in the defendants' favour was not a mere tenure but an interest in fee; and the plaintiffs further suggest that by 'grant of tenure' is meant that there is a certain residuary ownership retained by the Zamindar. Whether the decisions support this theory is a point which I need not decide, but I may remark that it is difficult to reconcile at least one decision of the Privy Council, namely Govindanarayan Singh v. Shy ainlal Singh A.I.R. 1931 with the view put forward by the plaintiffs. The real point to decide is, supposing the right to minerals does not pass, is the grantee on that account any the less 'an owner' within the meaning of the Act? The object of the enactment is to make better provision for the separate assessment to land revenue of the alienated portions (see the preamble). The revenue payable to the State is not in respect of any mineral or sub-soil rights. It therefore follows that a person can be an owner for the purpose of the Act, without possessing such rights. The position of a lessee even under a permanent lease is different; he can in no sense be called the owner and that is the' ratio decidendi of Maharajah of Vizianagaram v. Collector of Vizagapatam A.I.R. 1915 Mad. 535. In the present case, though the word 'patta' is used, the grant conveys an absolute interest; not only is no rent reserved but under the express terms of the grant, the grantee is to enjoy the land 'from son to grandson and so on in succession.'
28. It is next argued that the suit is barred by limitation. In 1903 the plaintiffs' predecessor-in-title applied to the Collector for separate registration. Under Section 2 unless all the parties to the alienation concur, the Collector cannot make an order in favour of the applicant. On the ground that the other parties did not concur, the Collector rejected the application of 1903. The defendants' contention in effect is, that the order, not having been set aside in time would preclude any further application. This raises the question, was it an order that needs to be set aside? The application of 1903 was rejected merely on the ground that the other party did not concur. The order followed as a matter of course, the Collector having no option under the section and no discretion. Where both parties do not concur the Collector is not required to apply his mind to the question at all. An order made in such circumstances cannot possess any legal validity and does not therefore require to be set aside. The position may be thus tested. Supposing shortly after the passing of such an order, both parties make a joint request, can the Collector refuse to entertain the application on the ground that the previous order operates as a bar? Supposing again it is the other party that now applies with the concurrence of the previous applicant, can the Collector reject the application?
29. The Act contemplates several kinds of orders, but in the case of an order of the kind in question, it is perfectly clear that it need not be set aside. That being so, the party's right to make a further application exists and what gives one of the parties a right to apply, is the continued existence of his liability to pay the assessment in respect of the share of the other. Unless by the force of the Act that right is taken away, it must exist. The party, if he chooses, may ignore the order; that may result in his having to pay the assessment in respect of the other man's share but that does not debar him from making a -second application. If an application is in this way repeated a second time and is again rejected, even then the party may ignore it, for, as I have said, there is nothing in law to compel him to get such an order vacated. But if he chooses to come to Court to have it set aside, he must bring his action under Article 120 within six years from the date of the order. The lower Court's view there, fore that the application in question (made in 1925) was legally sustainable, is perfectly right. That application was disposed of by the Collector in 1925; he rejected it on the ground that his previous order had not been set aside. The present suit was filed within a year of the order of 1925 and is therefore in time. In the result, the second appeals are dismissed with costs of the plaintiffs-respondents.