1. The plaintiffs (respondents before us) brought this suit for establishing their right to certain malikana money in respect of a 6 annas 17d. 18c. share of dearah Afzulpur bearing touzi No. 71. The previous history of this litigation is as follows: There was a permanently--settled estate, which is recorded in the rent-roll of the Collectorate as No. 319, consisting of a mouzah named Syedpur Mosleh. It is admitted in this case that dearah Afzulpur lies in front of Syedpur Mosleh. The; dearah accreted some time before 1825. Before 1860 in all the settlements which the Collector concluded in respect of the dearah in question, the maliks or proprietors of the permanently--settled estate No. 319 were treated as the; maliks of dearah Afzulpur. Some time before 1860, the owner of the 6 annas 17d. 18c. share, viz., the share in dispute in this case, of both Syedpur Mosleh and dearah Afzulpur, executed two conveyances, one in favour of Rowshun Ali and the other in favour of one Behari Lal. Behari Lal's conveyance was of prior date. In 1860 Rowshun Ali sued Behari Lal for possession of 5 annas of the dearah in suit and for reversal of the order of the revenue authorities; settling it with Behari Lal. The Court on that occasion came to the conclusion that Behari Lal had purchased only Syedpur Mosleh, and that under his conveyance he had acquired no right to dearah Afzulpur. On the pther hand, the Court held that under the conveyance executed in favour of Rowshun Ali, he (Rowshun Ali) had acquired a title in the aforesaid dearah. That suit was accordingly decided in favour of Rowshun Ali. In the year 1866, on the occasion of another temporary settlement, the question as to the right to receive malikana again came before the Collector, and the Collector, relying upon the Civil Court's decision in the: suit of 1860, refused to recognize Behari Lal's right to malikana, allowing Rowshun Ali's right to the share of the malikana. It is not shown on this record that Behari Lal or Rowshun Ali has, since the date of the Collector's robokari settling this malikana question, drawn the malikana in question. Behari Lal's right and interest in the property which he acquired under his conveyance were brought to sale in execution of a decree, and the plaintiffs (respondents) before us purchased them. After the new Registration Act came into operation, the plaintiff, on the strength of their purchase, presented an application for the registration of their names in respect of a 6 annas 17d. 18c. share of the malikana money in question. They were opposed by the defendant Gopi Nath Chobey. The Collector referred the case, under Section 55, Act VII of 1876, to the Civil Court, and on the 18th October 1879 disallowed the plaintiffs' application. Thereupon the present suit was brought on the 5th November 1880.
2. It is alleged by the defendant Gopi Nath Chobey that Rowshun Ali was his benamidar only. The defendant Gopi Nath Chobey, who is the appellant before us, amongst other pleas, relied upon the decision in the suit of 1860 being res judicata, and also upon the plea of limitation. He contended that, under the circumstances of this case, the plaintiffs' claim was barred by limitation. On the merits his ease was that the conveyance to Behari Lal did not transfer any right to doarah Afzulpur.
3. The Subordinate Judge dismissed the plaintiff's suit. The District Judge, on appeal by the plaintiff, has reversed that decision.
4. The District Judge has decided all three questions in favour of the plaintiff. He holds that under his purchase, Behari Lal acquired a right to dearah Afzulpur, which was only an accretion to mouzah Syedpur Mosleh. He has overruled the pleas of res judicata and limitation. 'Upon all these three points this second appeal has been argued, but it is sufficient for us to notice only the pleas of res judicata and limitation, and we are of opinion that upon both these pleas this appeal should succeed; first, as regards res judicata. The District Judge has found as a fact, with reference to which finding there is an objection on the other side, that Rowshun Ali was the benamidar of the appellant Gopi Nath Ohobey. Notwithstanding that finding he is of opinion that the present claim is not barred by res judicata: first, because there was no question about malikana in the suit of 1860; secondly, because it is not shown that the suit of 1860 was litigated by the parties upon the same title; and, thirdly, because the Munsif who tried that suit was not competent to try the present suit. The learned vakil for the respondents has urged that the District Judge is in error in assuming without evidence that Rowshun Ali is the benamidar of Gopi Nath Chobey. He has further contended that even supposing that Rowshun Ali was the benamidar of Gopi Nath, the suit of 1860 would not preclude the plaintiffs from contesting the same matter in a subsequent suit with the real owner--Gopi Nath Chobey. We shall notice these two objections, taken before us by the learned vakil for the respondents, first. As regards the first objection, it appears to us that the cases cited in support of it do not at all bear him out. With the exception of the decision in Meheroonissa Bibee v. Hur Chum Bose 10 W.R. 220 none of the other cases really touch this point. As regards the decision in that case, the observation relied upon appears to us to be a mere obiter dictum. There the question was whether the benamidar alone was entitled to maintain the suit without bringing upon the record the beneficial owner. In the course of the decision upon this point one of the learned Judges who decided that case made some observations which no doubt support the contention of the learned vakil for the respondents. The other two cases are not in point: the decision in Kallee Prosunno Bose v. Dinonath Bose Mullick 19 W.R. 434 really turns upon the ground that all the parties interested in the suit were not plaintiffs or parties to it. There a party, not on the record, viz., one Kedar Nath Bose, stated in his deposition that the property in dispute in that case had been purchased in the benami name of his cousin, the plaintiff on the record, and he further stated that under that purchase he and his cousin, the plaintiff on the record, were jointly entitled to the property. Upon that state of things the learned Judges decided the case upon the ground that all the persons entitled to the property were not joined as plaintiffs.
5. The other decision, viz., in the case of Sita Nath Shah v. Nobin Chunder Roy 5 C.L.R. 102 was on the question whether a benamidar alone, without joining the beneficial owner, is entitled to maintain a suit. Therefore none of the cases cited by the learned vakil for the respondents really can be relied upon as authorities upon the point now before us. But apart from authorities, it appears to us that so long as the benami system is to be recognized in this country, the proper rule, in our opinion, is that, in the absence of any evidence to the contrary, it is to be presumed that the benamidar has instituted the suit with the full authority of the beneficial owner, and if he does so, any decision come to in his presence would be as much binding upon the real owner as if the suit had been brought by the real owner himself. That being so, we do not think that this objection is valid. The next objection that was taken was that there was no evidence upon which the learned Judge could find that Rowshun Ali was really the benarnidar for Gopi Math Chobey. It appears to us that in the proceedings before the Civil Court under Section 55, Act VII of 1876, it was taken for granted by the Judge who decided that case that Rowshun Ali was the benamidar for Gopi Nath. The Subordinate Judge who tried that case, as found by the District Judge in this case, treated the defendant (appellant) Gopi Nath Chobey as the real owner of the share which had been purchased in the name of Rowshun Ali. In the plaint it is not stated by the plaintiffs that the Subordinate Judge was not right in treating Gopi Nath, the defendant, as the benamidar of Rowshun Ali; and whether the recital in the decision of the Subordinate Judge in the proceeding under Section 55, Act VII of 1876, is any evidence upon this point or not, it is clear to us that the said recital, coupled with the fact that it is not contradicted by the plaintiffs in the plaint, is some evidence of the fact that Rowshun Ali is the benamidar for Gopi Nath. Therefore we think that this objection also must fail.
6. We now come to the grounds upon which the District Judge has overruled the plea of res judicata. The first ground taken by the District Judge is that the former suit was for possession of the dearah itself, and that no question of malikana was in issue. It seems to us that this ground is untenable. Substantially the same question is at issue in both these suits, viz., the proprietary right to the dearah in dispute. In the suit of 1860, if Behari Lal had succeeded in establishing his proprietary right to the dearah, the suit of Rowshun Ali would have been dismissed; so also in this case, if the plaintiffs can establish as against Gopi Nath Chobey, the appellant, their proprietary right to the dearah, the plaintiffs would be entitled to a decree. The substantial question is therefore identical, viz., who is the proprietor of mouzah Afzulpur. The second ground upon which the District Judge has overruled the plea of res judicata is equally untenable. We have the decree passed in 1860 in which it was decided in favour of Rowshun Ali (and it may be taken, now that Rowshun Ali is only another name for Gopi Nath, the appellant before us), that Gopi Nath under his purchase from the common vendor of both himself and Behari Lal, had acquired a title to the dearah in dispute; and that Behari Lal had no title to it. It is not shown that that title, which was established in the suit of 1860 in favour of Rowshun Ali or Gopi Nath, the appellant before us, has been extinguished. Under these circumstances, it is reasonable to presume that Gopi Nath is in this suit relying upon the same title upon which Rowshun Ali on his behalf obtained a decree in the suit of 1860. Unless the plaintiffs can show that that title has been extinguished and that Gopi Nath is really relying upon a different title, it is reasonable to presume that Gopi Nath is litigating the same question in this suit under the same title. As regards the third ground, no doubt the District Judge's view is to a great extent supported by the language of Section 13 of 4ct XIV of 1882. The first paragraph of the section, which alone is material, is as follows: 'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties Under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised.' Now the District Judge says that, as the Munsif who tried the former suit would not be competent to try the present suit which is 'the subsequent suit,' therefore the provisions of Section 13 do not apply. We are of opinion that this construction of Section 13 is not correct. It is well known that in this country the value of landed property is increasing every day. A suit regarding a particular property may be, so far as regards the pecuniary value of it, properly cognizable by a Munsif to-day, and ten years hence a suit for that property, having regard to its pecuniary value then, might not be cognizable by the Munsif. But it would be unreasonable to 'hold, in a suit which might be brought ten years hence, that a decision between the same parties to-day passed by a Munsif having full jurisdiction would not be res judicata ten years hence. The reasonable construction of the words 'in a Court of jurisdiction competent to try such subsequent suit' eems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought, that is to say, if the Court which tried the first suit was competent to try the subsequent suit if then brought, the decision of such Court would be conclusive under Section 13, although on a subsequent date, by a rise in the value of such property or from any other cause, the said Court ceased to be the proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property. In this case, in the suit of 1860, there was no objection taken that the Munsif had no jurisdiction to entertain it, and therefore the parties being the same, it may be taken as conclusively decided by that suit as between them that the Munsif in that suit had jurisdiction to entertain it. The present suit relates to the same property; it is true that it has been brought in the Subordinate Judge's Court, and no objection has been taken to the value put upon the claim, still if the first suit was cognizable by the Munsif, the second suit, which embraces the same property, must be held to have been cognizable by the Munsif also if brought in 1860. Putting this construction upon Section 13 it seems to us that the decision in the suit of 1860 comes within the purview of it. Upon all these grounds, we are therefore of opinion that the plea of res judicata taken by the defendant (appellant) should prevail.
7. As regards the other plea, viz., that of limitation, it appears to us that one of the following articles, viz., 131, 144, or 120 must apply to the present suit. If it can be held that this is a suit for possession of immoveable property or any interest therein, then in that case it is quite clear that article 144 must apply. Article 142* is not applicable, because that article contemplates a suit for possession of immoveable property when the plaintiff, while in possession, has been dispossessed. There is no allegation of dispossession in this suit; therefore if it is a suit for possession of an interest in immoveable property, Article 144 applies. Again, if it be said that it is not a suit for possession of an interest inland, then either article 131 or 120 is applicable. Article No. 131 is to this effect: 'For a suit to establish a periodically recurring right twelve years from the time when the plaintiff is first refused the enjoyment of the right.' In this case the plaintiffs are seeking to establish, no doubt, a periodically recurring right, viz., a right to receive malikana annually, but there is also a further claim involved in the suit, because that right carries with it a right to the property itself, if the parties consent to take a settlement when the time for concluding the next temporary or permanent settlement comes. Therefore it cannot be said that it is purely a suit to establish a periodically recurring right. But if the present suit do not fall within Article 144 or article 131 it must then fall under Article 120. If Article 144 applies, we have to determine whether in this case the possession of the defendant did not become adverse to the plaintiff' for more than twelve years. In the year 1866, when the Collector refused to recognize the right of Behari Lall and recognized the right of Rowshun Ali, adverse possession, so far as possession could be taken of an interest in immoveable property like the one in dispute in this case, was taken by Rowshun Ali. Upon this point the learned vakil for the respondents strongly relied upon a decision in the case of Rao Karran Sing v. Raja Bakar Ali Khan L.R. 9 I.A. 99. It was held in that suit that upon the facts found in the lower Court, Article 145 of the second schedule of Act IX of 1871, which corresponds with Article 144 of the present Limitation Act, was applicable; and their Lordships of the Judicial Committee further held that, with reference to the facts found in the case, adverse possession against the plaintiff had not been taken for more than twelve years. These facts were as follows: One Badam Singh was entitled to the property in dispute in that case and upon his death his widow took possession, Karan Singh, who was the appellant before their Lordships, brought a suit to turn the widow out of possession, upon the ground that Badam Singh had made him his heir-at-law. That suit was defended by the widow, and after her death the grandchildren of Badam Singh, Kharag and Budar Singh, were made parties to the suit. The claim of Karan Singh, the appellant before the Privy Council, was dismissed. Then Karan Singh brought another suit against Kharag and Budar Singh for possession of the same property, on the ground that they, Kharag and Budar Singh, who were the sons of a daughter, were not, according to the custom of the family, entitled to inherit the estate. While that suit was pending, the Collector, in order to secure the Government revenue, attached the property and retained possession from 1861 till October 1863, when, in accordance with the decision of the Civil Court, the possession of the property in dispute, together with the surplus profits of the estate lying in deposit in the Collectorate, were made over to Karan Singh.
8. Then the suit out of which arose the appeal under consideration, was brought within twelve years from October 1863, but not within twelve years from 1861 when the Collector took possession. Under these circumstances, their Lordships of the Judicial Committee held that the Collector's possession from 1861 to October 1863 was not adverse to the plaintiff in that suit. Their Lordships observed:
It was the duty of the Collector, whilst in possession under the attachment, to collect the rents from the ryots, and having paid the Government revenue and the expenses of collection, to pay over the surplus to the real owner. If the defendant was the real owner, the surplus belonged to him; but if, on the other hand, the infants were the right owners, then the surplus belonged to them.' In this case it cannot be said that the Collector, supposing that the malikana money from the year 1866 is lying in deposit in his office, was holding it for the real owner, whoever he may be. In this case the Collector, under the power vested in him by the Settlement Regulations, had to decide at the time of the settlement as to the person who was entitled to the malikana, and under this power vested in him by the Regulations, he decided that question in favour of Rowshun Ali and against Behari Lal. Therefore, it is clear that after that decision he was holding for the person whose right he had recognized; he having the right to decide that question under the Settlement Regulations.
9. Therefore, in this case, it must be held that from the year 1866 adverse possession, so far as adverse possession can be held of a right of this description, has been held by Gopi Nath Ohobey, the appellant before us. If Article 131 is applicable, the claim would be equally barred, because the plaintiffs are bound to bring their suit within twelve years from the time when--they were first refused the enjoyment of the right. It is quite clear that at least in the year 1866 they were first refused the enjoyment of that right, and therefore the plaintiffs were bound to bring their suit within twelve years from that date. For similar reasons, if Article 120 be applicable, the suit should have been brought within six years from the date of refusal. We are, therefore, of opinion that the suit must be dismissed, both upon the grounds of limitation and res judicata, under Section 13 of the Civil Procedure Code.
10. We reverse the decision of the lower Appellate Court and dismiss the plaintiffs' suit with costs in all the Courts.
Page No. 710 of Foot Note
*[ Article 142:-
Description of suit. | Period of | Time from which period
| limitation. | begins to ran.
For possession of immoveable pro- | Twelve years ... | The date of the dispossession or
perty, when the plaintiff, while in| | discontinuance.]
possession of the property, has be-| |
en dispossessed or has discontinued| |
the possession. | |