Mitter and Grant, JJ.
1. The question involved in this appeal is one of limitation under Article 130 of the second schedule of Act XV of 1877; and it arises in this way:
The plaintiff, who is the zamindar of Chuckla Rashinabad, instituted a suit on the 28th of December 1861 against one Choituno Mohun Adhicary in the Collector's Court for the purpose of resuming, and for having his right declared to assess rent upon, certain lands within the ambit of his. zemindari which he, the defendant, held as lakheraj. It does not appear from the decree pronounced in that suit, and which we may here mention is the only proceeding before us in connection with it, whether it was a suit under the provisions of Section 30, Regulation II of 1819, or Section 28,1 Act X of 1859, or under any other law; but we have it that subsequently to the passing of Bengal Act VII of 1862, which provided for the transfer of suits instituted under Section 30, Regulation II of 1819, from the Collector's Court to the Civil Court, that suit was transferred from the Collector's to the Civil Court; and there can be little doubt that, as this transfer was made immediately after the passing of that Act, and no special reason is assigned for its transfer, it was made in consequence, and that, therefore, the suit had been brought under Section 30, Regulation II of 1819. And we may here observe that if it had been a suit under Act X of 1859, there was nothing to prevent the Collector from proceeding with it. In the Full Bench case of Sonatun Ghosa v. Abdvol Farrar B.L.R. Sup. Vol. 109 : 2 W.R. 91, the majority of the Judges who constituted that Bench held that Section 30, Regulation II of 1819, related only to resumption of lakheraj existing prior to 1790. And if this suit be regarded as one brought under that law, it would seem that it was barred under the law of limitation then in force (XIV of 1859, Section 14).2 But however that may be, an ex parte decree was passed in January 1863 in these words: 'The suit be decreed, and the land in dispute be declared to be shukur.' These words, taken with the recitals of the claim given in the decree, mean, as we take it, that the prayer for resumption of the lakheraj be allowed, and the lands be declared liable to pay revenue or rent, as the case might be, with reference to the grant set up being either anterior or posterior to December 1790.
2. Nothing was done in furtherance of that decree, until the year 1886, when a notice was served by the zemindar upon the defendants, who are the representatives of Choituno Mohun Adhicary, calling upon them to agree to hold the lands at a certain jumma; and he subsequently brought the present suit on the 12th of July 1886 for the purpose of assessing the lands at the rate mentioned in the notice, and for recovery of rent at that rate.
3. This suit has been dismissed by both the lower Courts as barred by limitation.
4. The main contention that was raised before us by Mr. O'Kinealy, the learned Counsel for the appellant, was that, although more than 12 years have elapsed from the date of the decree of 1863, still no limitation would apply, because the effect of the decree was to re-annex the land that had been improperly alienated after 1790 to the mal estate of the zemindar, and to create between the parties the relationship of landlord and tenant. Mr. O'Kinealy further contended that the land having been already declared to be mal, Article 130 of the Limitation Act had no application. And he relied upon the rulings of this Court in Madhusudan Sagory v. Nipal Khan 8 B.L.R. Ap. 87 (note) : 15 W.R. 440, Saudamini Debi v. Sarup Chandra Boy 8 B.L.R. Ap. 82 : 17 W.R. 363, and Pratap Chunder Chowdhry v. Shukhee Soondaree Dassee 2 C.L.R. 569.
5. The validity of the contention raised before us depends entirely upon what may be the true interpretation and effect of the resumption decree passed in January 1863. That decree, as already mentioned, does not show under what law it was passed, nor is there anything stated in it as to whether the grant set up by the lakherajdars was a grant subsequent or anterior to December 1790. Unless this be shown, we cannot say that the effect of the decree was to establish, as contended for the appellant, the relationship of landlord and tenant between the parties. It has been held in certain cases by this Court that a decree for resumption of a lakheraj grant before December 1790 does not by itself create such a relation; that it is after the decree has been followed up by a proceeding assessing the revenue payable by the lakherajdar, and when the latter agrees to pay the revenue assessed, that such a relationship is created; while in the case of a grant subsequent to the year 1790, the decree declaring the zemindar's right to assess rent does establish such a relation. See Madhub Chandra Bhadory v. Mahima Chandra Mazumdar 8 B.L.R. Ap. 83 (note) : 12 W.R. 442, and Shamasunden Debi v. Sital Khan 8 B.L.R. Ap. 85 (note) : 15 W.R. 474.
6. Taking the law as thus laid down we think that, in the absence of anything being shown by the plaintiff as to the law under which the above decree was passed, and whether the alienation was anterior or subsequent to the year 1790, we cannot say for him, upon the bare words of the decree, that it established the relationship of landlord and tenant; while, on the other hand, the fact of the suit being transferred after the passing of Bengal Act VII of 1862 from the Collector's to the Civil Court indicates to our mind that it was a suit under Section 30, Regulation II of 1819, which related to the resumption of grants made before the year 1790. If the alienation was made before that year, there can be no doubt that the decree was in respect of lands falling within Section 6, Regulation XIX of 1793, and it follows that the zemindar was bound to have adopted the procedure laid down by Sections 8 and 9, Regulation XIX of 1793, for the assessment of revenue upon those lands. And if this had been done, the relationship of landlord and tenant would have been established between the parties. But so far as the words of the decree of 1863 are concerned, they merely amount to this, that the lakheraj is not a valid one, and that the lands are liable to pay revenue or rent, as the case might be. It does not declare that the land* belong to the mal estate of the zemindar.
7. If this decree did not establish the relationship of landlord and tenant, and if it did not declare that the lands were the mat land of the zemindar, it seems to us to be clear that the plaintiff was bound to have brought his suit within twelve years from the date thereof for the assessment of the lands.
8. As to two of the cases relied upon by Mr. O'Klnealy, viz., Madhvsudan Sagory v. Nipal Khan 8 B.L.R. Ap. 87 (note); 15 W.R. 440 and Saudamini Debi v. Sarup Chandra Boy 8 13. L.R. Ap. 82 : 17 W.R. 363, we may observe that the question of limitation was not raised in either of them; and there is nothing in those decisions, as we understand them, which militates against the view we have expressed. It was no doubt laid down in the first of these two cases that, in regard to decrees passed before the Full Bench decision in the case of Sonatun Ghose v. Abdool Farrar B.L.R. Sup. Vol. 109 : 2 W.R. 91, it could not be said that merely because the procedure laid down in Section 30, Regulation II of 1819, was followed, it must be inferred that the grant was anterior to December 1790. But it is to be observed that it was found in the judgment delivered in the resumption case, which was before the Judges in the above case, that the defendant had failed to prove that the lakheraj existed prior to 1790; while so far as the resumption decree with which we are concerned, there was no such finding: and, in the second place, as already remarked, there are other facts before us which lead us to infer that the grant which was the subject-matter of the decree of 1863 was one anterior to 1790.
9. As regards the other case relied upon by Mr. O'KINEALY, viz. Protap Chunder Chowdhry v. Shukhee Soondarte Dassee 2 C.L.R. 569, it is sufficient to state that the judgment proceeds mainly upon the construction which the learned Judges put upon the resumption decree that was before them. That decree was construed to have the effect of declaring 'that the land in the possession of the defendant had been part of the permanently-settled estate, and had been separated by an invalid grant, and thereon to resume the same and re-annex the land to the zemindar's estate.' We have not before us the terms of the decree in that case, nor do we know what were the facts from which this construction was arrived at. The terms of the decree in the suit of 1886, now before us, do not however enable us to come to the same conclusion.
10. Our attention has been called by the learned vakil for the respondent to an unreported decision by another Divisional Bench of this Court (MITTER and Grant, JJ.) in Second Appeal No. 1605 of 1885, decided on the l3th May 1886, which altogether supports the view adopted by the lower Appellate Court, holding that the plaintiff's claim was barred under Article 130 of the Limitation Act. The facts of that case were very similar to this, and we may say that we quite concur in that ruling.
11. The appeal will accordingly be dismissed with costs.
12. Appeal Nos. 2219, 2230, 2233 will be governed by the decision in No. 223. And so far as the latter of these cases is concerned, it being found that the predecessor of the present defendant was no party to the resumption decree, there can be no question whatever that the plaintiff's suit is barred by limitation. These appeals are accordingly dismissed with costs.
1 Application to dispossess grantees of land exempt from revenue.
[Section 28: So much of Section X, Regulation XIX, 1793, Section X, Regulation XLI, 1795, Section VI, Regulation XXXI, 1803, Section XXI, Regulation VIII, 1805, and Section XXIV, Regulation XII, 1805, as authorises and requires proprietors and fanners of estates and dependent talooka, in cases in which grants for holding land exempt from the payment of revenue have been made subsequent to the dates specfied in the said sections, of their own authority to collect the rents of such land and to dispossess the grantees of the proprietary right in the land and to re-annex it to the estate or talookln which it may be situate, is repealed; and any proprietor or farmer who may desire to assess any such land or to dispossess any such grantee shall make application to the Collector, and such application shall be dealt with as a suit under the provisions of this Act. Every such suit shall be instituted within the period of twelve years from the time when the title of the person claiming the right to assess the land or dispossess the grantee, or of some person claiming under him, first accrued. If such period has already elapsed or will elapse within two years from the date of the passing of this Act, such suit may be brought at any time within two years from such date.]
2 computation of period of limitation in case of suit prosecuted bona fide but in wrong court.
[Section 14: In computing any period of limitation prescribed by this Act, the time during which the claimant, or any person under whom he claims, shall have been engaged in prosecuting a suit upon the same cause of action against the same defendant, or some person whom he represents, bond fide and with due diligence, in any Court of judicature which, from defect of jurisdiction or other cause, shall have been unable to decide upon it, or shall have passed a decision which, on appeal, shall have been annulled for any such cause, including the time during which such appeal, if any, has been pending, shall be excluded from such computation.]