Trevelyan and Beverley, JJ.
1. The only two points pressed before us in these appeals are:
1. That the lower Appellate Court was wrong in holding by its judgment of 8th February 1892 that the suits were not barred by Article 14 of the Limitation Act and in remanding them for trial on the merits.
2. That the Courts below have not tried the question whether the plaintiff's' suits are barred by twelve years' adverse possession on the part of the defendants.
2. On the first point it is to be remarked that the present appellants did not appeal, as they might have done, against the order of remand. It is contended, however, that under the provisions of Section 591 of the Code they are entitled to object to that order when appealing against the final decree. Assuming that to be so, we are not prepared to say that the order of the lower Appellate Court was wrong.
3. The question turns upon certain provisions of the Estates Partition Act (Bengal Act VIII of 1876). It is contended that under Section 116 of that Act the lands now in dispute were treated by the Collector as part of the appellants' estate at the time of partition, and that the plaintiffs cannot recover possession of them until the order of the Collector is set aside.
4. Section 150 of the Act provides that 'any person who is aggrieved by any order of a Revenue Officer passed under Section 116, may bring a suit in a Court of competent jurisdiction to modify or set aside such order of the Revenue Officer.' But the law nowhere says that if no such suit is brought the order of the revenue officer shall be binding as between the proprietors of the estate under partition and third parties. So far from that being the case, Section 117 contemplates the contingency of the proprietors of the estate under partition being 'dispossessed by a decree of a Court of competent jurisdiction' of disputed lands which have been treated as part of the estate by the Collector's order under Section 118, and makes provision as to what should be done in the event of such a contingency.
5. It seems clear, therefore, from a consideration of that Section alone that a suit for the possession of lands of which the owners have been dispossessed in pursuance of an order of the Collector passed under Section 116 will he even though no suit is brought to set aside the Collector's order under Section 150. In fact, the dispossession might not actually take place till more than a year after the Collector's order, and it seems to us that it would be unreasonable to hold that in such a case the aggrieved party-would have no remedy if he had omitted to sue to have the Collector's order set aside. On the contrary, the Act appears to contemplate that the claimant of such lands 'may' either sue to set aside the Collector's order, or wait till he is in fact dispossessed and then bring a suit to recover possession. We are of opinion, therefore, that the plaintiffs in these suits were not bound to sue to have the Collector's order set aside, and that the suits are not barred by Article 14 of the Limitation Act, The first ground of appeal therefore fails.
6. As regards the second ground we do not find that any claim by 12 years' adverse possession was put forward in the written statements, in which limitation was only pleaded on the ground that the plaintiffs should have sued within one year to set aside the Collector's order of 12th June 1869. The issue framed was no doubt in general terms 'whether these suits are barred by limitation,' but that issue was tried solely with reference to Article 14 of the Act. It is true that the lower Appellate Court before remand made certain remarks in its judgment regarding the 12 years' limitation, and advantage has been taken of those remarks to urge this point before us in second appeal. But it seems to us on a consideration of those remarks that the lower Appellate Court intended to find as a fact that the plaintiff's had been dispossessed within 12 years, and that the suits were not barred under Article 144. And it is quite clear that after the remand this point was not pressed or argued in either Court. We think, therefore, that under these circumstances the appellants are not entitled to have the suits remanded again for the trial of this question.
7. The result is that the appeals fail and must be dismissed with costs.