1. In the suit out of which this appeal has arisen the plaintiff prayed for a declaration of his zemindari title to four-annas share in the land described in the khatian mentioned in the plaint; that his possession thereto may be confirmed; and that the settlement khatian might be declared wrong and fraudulent. There was a. further prayer that if the Court found that the plaintiff was out of possession, then possession of the said lands might be given to the plaintiff after declaration of title. His allegations in the plaint were that during the last Settlement operations, which took place in 1907, the lands in suit were recorded in the name of the principal defendants either through the fraud of the principal defendants or through the mistake of the Survey Amin, but that the lands were still in his possession. He then proceeded to state that the lands being at a great distance from his house, and near to the house of the principal defendants, the father of the principal defendants was entrusted with the task of recording; and on account of their fraud the plaintiff could not know anything of the said record, and that he came to know of the incorrect entry in the Record of Eights in Falgoon 1323 B.S., corresponding to February 1919. The case of the defendants was that they were tenants in respect of the lands under the plaintiff and that they had been in possession for more than 12 years. The first Court dismissed the plaintiff's suit holding that the plaintiff was not in possession and that the Defendants Nos. 1 and 2 were in possession. He disallowed the plaintiff's prayer for khas possession on the ground that he had not been in possession within 12 years prior to the institution of the suit. He, therefore, held that the plaintiff's suit was barred by limitation.
2. On appeal this finding was reversed by the District Court. The District Court found that the plaintiff was still in possession and that defendants have never to the knowledge of the plaintiff asserted their adverse title and possessed the disputed lands for more than 12 years prior to the suit. He, therefore, found that there was no complete ouster and that the suit was not time barred by the 12 years rule and he decreed the plaintiff's suit in full with, costs.
3. Defendants Nos. 1 and 2 have appealed to this Court. It is contended on their behalf that the plaintiff's suit is barred by limitation. Mr. Roy Choudhury, who has appeared for them, contends that Article 120 and not Article 144, which is apparently the article applied by the lower appellate Court, is the Article that applies. He then contends, that limitation runs from the date of the final publication of the Record of Eights; that the final publication was in 1907 and hence the suit is clearly barred by limitation. In support of his contention he has relied on the decision in the case of Rajani Nath Pramanik v. Manaram Mandal  23 C.W.N. 883. Mr. Roy Chowdhury contends that the period of limitation must run from the date of the publication of the Record of Rights as there is no allegation in the plaint that the plaintiff's possession has in any way been disturbed by the defendants. Hence the only cause of action is the incorrect entry in the Record of Rights. The decision to which he has referred us undoubtedly lends support to the contention of the learned advocate. The facts of that case were very similar to those of the present case. In that case it was also pointed out that the plaintiff did not allege that his possession had been in any way disturbed or threatened to be disturbed by the defendant. It is quite clear from the plaint in the present case that the plaintiff bases his cause of action on the Record of Rights and on nothing else. There is no suggestion anywhere in the plaint that his possession has been in any way threatened or disturbed by the defendants. Therefore his only cause of action is this entry in the Record of Rights. If his cause of action dates from the date of the final publication of the Record of Eights then it is quite clear that the suit is barred by limitation.
4. In the plaint, however, there is an allegation that the plaintiff has been kept out of knowledge of the entry in the Record of Rights by the fraud of the defendants. It does not appear that the case was ever considered from this standpoint by either of the Courts below. The learned advocate who appears for the plaintiff-respondents contends that it is not open to appellant now for the first time in second appeal to raise this question of limitation. It seams to me, however, that this question of limitation is a mixed question of law and fact; the case made out really by the plaintiff in the plaint was that his cause of action dated from the Record of Rights and that he had been kept out of his knowledge of the incorrect entry by the fraud of the defendant and the Court was bound to see whether he had brought his suit within the statutory period. Admittedly the plaintiff must bring his suit within the statutory period of limitation. As far as I can see neither of the Courts below has approached the case from this point of view. It will, therefore, be necessary for the case to be remanded to the lower Court to decide whether the plaintiff was kept out of knowledge of this entry in the Record of Rights by the fraud of the defendants until a date within the statutory period. If he finds that the plaintiff was so kept out of knowledge of the entry in the Record of Rights by the fraud of the defendants he will then hold that the suit is not barred by limitation and he will decree the appeal and the suit because all the other findings in his judgment are in favour of the plaintiff. If, on the contrary, he finds that the plaintiff was not kept out of his knowledge of the entry in the Record of Rights by the fraud of the defendants he will dismiss the appeal and dismiss the suit as being barred by limitation.
5. Costs of this appeal will abide the final result.
6. I regret that this remand is necessary because in my opinion it is due merely to defective pleadings on behalf of the plaintiff. If the plaintiff had set out in the plaint that he desired a declaration of title and confirmation of possession because the defendants were denying his title or disturbing or threatening to disturb his possession, I should not have consented to the remand being made. It is patent to my mind both from the written statement and the course which the proceeding took that in point of fact Defendants Nos. 1 and 2 were claiming to be tenants and the lower appellate Court has found that they adduced a forged pattah in support of their claim On the other hand an owner of property is not entitled to launch proceedings for a declaratory decree merely for caprice or because it may be that he enjoys litigation. He must bring himself within the provisions of the Specific Belief Act in a case such as the present one. Now, in his plaint the plaintiff does not allege that his possession has been disturbed or threatened by the defendants. Upon the defect in the pleadings, although, as I have stated, in my view there is no substance in the point, it appears, having regard to the terms of the plaint alone, that the plaintiff's real cause of action was for a declaration that the entry in the Record of Eights was erroneous. If that is so there is authority for the view that Article 120 of the Limitation Act would apply. But the plaintiff alleges that the entry was fraudulently made by the father of Defendants Nos. 1 and 2 and that he actually became aware of this fraudulent entry at a later date, which, if made out, would entitle him to maintain the suit. I consent, therefore, to the remand being made in the terms and for the purpose which my learned brother has stated.