Wilson and Beverley, JJ.
1. This was a suit to recover from the defendants a share in certain money received by them from Government as compensation for land acquired under Act X of 1870, on the allegation that a portion of the land acquired was situated within the plaintiff's taluk.
2. The plaintiff states that she is a purda nashin lady, and that no notice of the proceedings under Act X was served upon her.
The defendants raised various objections to the suit, but both Courts have disposed of it on a preliminary issue, viz., issue No. 6, which was as follows: 'Whether the suit can proceed in this Court under the provisions of a special law, and also under the ordinary principles of law? '
3. The finding of the lower Courts is that the plaintiff was a party to the proceedings under Act X, and is therefore barred from bringing this suit.
4. The facts appear to be these: The plaintiff as one of the persons believed to be interested in the land to be acquired, was served by the Collector with a notice under Section 9 of the Act. She did not appear, however, or make any claim before the Collector. Ultimately, the matter was referred to the Court under Section 15, the order of reference being as follows: 'As there are conflicting claims and some persons interested do not appear, and the persons interested do not accept my award, the matter must be referred for the determination of the Court.' This order is dated 19th April 1881.
5. A notice was then issued on the plaintiff under Section 19 of the Act. This notice called on the plaintiff to make a claim and to appoint an assessor to assist the Court in determining the proper amount of compensation; there is no mention in it of any intention to apportion the compensation money when determined. The plaintiff did not appear before the Court. On the 21st July the Judge proceeded to determine the amount of compensation in the presence of those claimants who did appear, and on the 14th September he apportioned the compensation amongst them under Section 39. The money was apportioned among the five defendants and two other persons who have not been made defendants in this suit. No fresh notice was served on the plaintiff.
6. Two objections have been raised on second appeal against the decision of the lower Courts.
7. In the first place it is said that the lower Courts were wrong in not trying the question whether the notices under Sections 9 and 19 of the Act were actually served on the plaintiff; and, secondly, that even assuming that those notices were duly served, the plaintiff was not a party to the apportionment proceedings under Section 39 so as to be bound by them. On the first point it seems to us that both the lower Courts have found as a fact that the notices in question were duly served, and it is not open to the plaintiff-appellant to question this finding in second appeal.
8. There remains the question whether, the notice having been issued with a view to the determination of the amount of compensation, and the plaintiff not having appeared, she is barred from questioning the further proceedings of the Court in apportioning the compensation under Section 39.
8. Section 39 runs as follows: 'When the amount of, compensation has been settled by the Court, and there is any dispute as to the apportionment. thereof * * * the Judge sitting alone shall decide the proportions in which, the persons interested are entitled to share in such amount.'
9. It seems clear from these words that the apportionment of the compensation is intended to be a distinct proceeding from that of settling the amount; and that the dispute is only decided as between those persons who are actually before the Court. If it is intended to bind any other person not then before the Court and not a party to the dispute, notice of the further proceeding should, we think, be served on such person. In this case the plaintiff admittedly had no notice that the compensation money was to fee apportioned by the Court. She may well have been content to let the amount of compensation be settled by the Collector, or by the Court, as the case might be. It not unfrequently happens that the persons interested do not appear, and the amount of compensation has to be settled in their absence. But we are not aware that it has ever been ruled that by their absence they have disentitled themselves to receive the amount which may be found due to them. Neither in our opinion can it rightly be said that when the amount of compensation has without notice to them been apportioned and paid away to third parties, they are barred from recovering their share of the money because they omitted to appear before the Court.
10. In deciding this question, the lower Courts have relied upon the ruling of the Privy Council in the case of Nilmoni Singh Deo Bahadur v. Ram Bandhu Rai I.L.R. 7 Cal. 388 but we think that that decision does not necessarily govern the present suit. In that case the plaintiff was admittedly a party to the apportionment proceedings, and it was held that he was bound by those proceedings and could not re-open the matter by bringing a suit under the proviso to Section 40. Their Lordships were of opinion ' that the Courts in India, who both concur on this point, have rightly held that this proviso applies only to persons whose rights have not been adjudicated upon in pursuance of Sections 38 and 39.' If then we are right in holding that the plaintiff in this suit was not a party to the apportionment proceedings, the Privy Council decision is direct authority to show that she is not barred from suing under Section 40.
41. Reference has also been made to a dictum of Pointifex, J., in the case of Nobodeep Chunder Chowdry v. Brojendro Lall Roy I.L.R. 7 Cal. 406, to the effect that 'any party who has been summoned before the Judge and has not appeared is bound by the decision.' But that was not the point decided in the case, and the language of the learned Judge is not altogether free from doubt. Possibly a person summoned to take part in the apportionment proceedings would in default of appearance be bound by those proceedings. But we cannot accept the dictum as authority for the proposition that a person summoned in one proceeding is, to be held bound by the decision in a subsequent and distinct proceeding. Indeed, the contrary view seems to have been taken in the case of Kamini v. Dabia Protap Chandra Sanyal 25 W.R. 103 though the facts of that case are not very clearly stated in the report.
42. In the present case we think that the plaintiff was not a party to the apportionment proceedings under Section 39 of the Act, and consequently that she is not barred by the decision in those proceedings from bringing the present suit under the proviso to Section 40.
41. The case must therefore go back to the first Court for the trial of the remaining issues.
42. The costs will follow the result.