1. These appeals have arisen out of a suit which was commenced on the following allegations:
2. That the lands of Taluk No. 1116 of the Dacca Collectorate are owned and possessed jointly by the plaintiffs, the principal defendants and the proforma defendants, the plaintiffs and the proforma defendants having an 8 annas share and the principal defendants the remaining 8 annas share; that a debuttar, a brohoottar and a shikari have been wrongly recorded as interests held under the 16 annas of the Taluk; and that in a partition pending before the Collectorate, the said interests were being treated as such. The plaintiffs as owners of a 5 annas 12 gandas share in the taluk alleged that the said interests had no existence in fact, and that at least none of them was held under the 8 annas share belonging to themselves and to the proforma defendants. The reliefs asked for were several, but for the purposes of this appeal they may be taken to have been the following: (a) A declaration that the record, in so far as it mentioned the said interests as under the 8 annas share of the plaintiffs and of the proforma defendants was wrong, and that the said 8 annas share was free from those interests; and (b) an injunction restraining the principal defendants from claiming such interests.
3. The defence of the principal defendants was a denial that there was anything wrong in the record that had been made of the said interests, a plea of limitation, and an objection as regards the maintainability of the suit. The last two matters go together. The Subordinate Judge has found:
There is no debuttar, brahmottar or shikmi right under the 8 annas share of the plaintiffs and of the proforma defendants, though there are such rights under the 8 annas share of the principal defendants.
4. This finding, it should be stated, has not been disputed. The Judge however dismissed the suit on the ground of limitation The two appeals have been preferred by the plaintiffs in two batches. The Judge has held that the suit is for a declaration that the plaintiff's right has not been correctly recorded and so is a suit within the proviso to Section 111-A, Ben. Ten. Act; that the other prayers in the plaint did not convert the suit into one of any other nature; and that as the suit, to which Article 120, Lim. Act, applied, was not instituted within six years of the final publication of the Record of Rights, it was barred. He overruled the contention that the plaintiffs were entitled to come within six years of the date when their title was in jeopardy. For the view of limitation that he took he relied on Rajani Nath v. Manaram, 1919 Cal 151. In Kali Mata Thakurani v. Surendra Nath, 1984 Cal 102 it has been observed that so long as the entry does not injure the plaintiff he need not come to Court at all, and that therefore a plaintiff is not out of time if he institutes the suit within six years of the injury which the entry creates and which is the cause of action. As the law and the authorities bearing on it were not discussed in that case, and as the Subordinate Judge has taken a contrary view it is necessary to consider the matter further.
5. Under the substantive part of Section 111 A, no suit in respect of the order directing the preparation of Record of Rights or in respect of framing, publication, signing or attestation of such record or any part of it lies in the civil Court: nor does a suit lie in the civil Court in respect of rent settled under Sections 104-A to 104-F, except a suit provided for in Section 104-H. The proviso contained in Section 111-A says that a person dissatisfied with any entry in or omission from a Record of Rights, which concerns a right of which he is in possession may institute a suit for a declaration of his right under Ch. 6, Specific Relief Act, 1877. As explained in Nasarulla v. Amiruddi (1906) 3 CLJ 133 the first part of S, 111-A, prohibits suits which seek to take undue advantage of more technical defects in the procedure leading up to or involved in settlement proceedings; and it further prohibits the alteration of rent once settled, except to the extent allowed by Section 104-H, the object of which prohibition is to safeguard the Government revenue and to attach reasonable finality to the fixation of assets upon which the Government revenue is based. S 104-J makes it clear that, subject to the provisions of Section 104-H, the rent settled shall be deemed to have been correctly settled and to be fair and equitable. But the question is, what is the effect of an omission to institute a suit under the proviso of Section 111-A as regards a right which has been entered in or omitted from the Record of Rights. Plainly, the only effect is that the entry in the Record of Rights as finally published remains and 'shall be presumed to be correct until it is proved by evidence to be incorrect'. [S. 103-B. Sub-Section (5).]
6. The entry in the Record of Rights neither creates nor takes away any rights: having been made on the basis of possession, it remains as a piece of evidence with an evidentiary value, namely with a presumption of correctness attaching to it. It is not absolutely incumbent on and indeed it is often unnecessary for a party to avoid the effect of the presumption: a party affected by the presumption can come to Court as and when he finds some injury actually arising from it. And so long as he frames his suit to avert or remedy the injury and is in time for that purpose, the fact that he seeks for a declaration as regards the incorrectness of the entry, but only as ancillary to the relief as to injury that he asks for, it is not possible so see how or why his suit should not be held to be in order. On the words of the statute and on principle no other view is indeed possible. Now, let us see what is the state of authorities on the point. In Ram Gulam Singh v. Bisnu Pargash Narain Singh (1907) 11 CWN 48, the Judges explained the nature of the suit which the proviso to Section 111-A, contemplates, and observed as follows:
The proviso to Section 111-A of the Act speaks of the possibility of a suit by a person who is affected by an entry in the Record of Rights, for a declaration under the Specific Relief Act; and a suit for declaration, as is contemplated by S 42, Specific Relief Act, may be instituted within six years of the date when the cause of action arose. We are of opinion the it was not necessary for the plaintiff to bring a suit to set aside an entry in the Record of Rights.
7. In this decision as well as in a previous decision, Agin Bind v. Mohan (1903) 30 Cal 20, to both of which Mitra, J., was a party, the Judge very clearly pointed out that it was not necessary for a party to bring a suit for avoiding a presumption, but if his cause of action is the entry itself and he wants to have the entry corrected he must come within six years of that cause of action. In Speopher Singh v. Deo Narain (1912) 10 AL JR 413 it was held that unless an actual claim was made upon the entry in the record of rights, time did not run against a plaintiff who seeks to have a declaration against the correctness of the entry. In Dina Nath v. Rama Nath, 1916 Cal 392, along with a prayer for declaration there was a prayer for confirmation of possession and for an injunction, it was held that the prayer for injunction was a prayer for a consequential relief and so the suit was not a declaratory suit to which Article 120, Lim. Act, applied. It was further pointed out that entries in a record of rights adverse to the plaintiff do not by themselves affect his possession though they may be used in evidence against him in a suit for declaration of title, and that time does not run against him until an actual claim is made on the strength of the entry in the record of rights. In Saraj Kumar v. Umed Ali, 1922 Cal 251, it was observed that an entry in the record of rights merely raises a presumption of correctness and is not a starting point for the computation of the period of limitation. In that case a suit for declaration of title and confirmation of possession was brought more than six years from the date of final publication of the record of rights but within six years from the date of the attempted dispossession; and it was held that the right to sue accrued on the latter date and the suit was not barred. In Profulla Chandra v. Kshetra Lal, 1929 Cal 417 the plaintiffs had not asked for correction of record of rights, but had incidentally asked for a declaration that the entry therein was incorrect and had also sought for an injunction restraining the defendant from executing a rent decree which the latter had obtained on the basis of the wrong entry; and it was held that the plaintiff was within time, having come within six years of the institution of the suit for rent.
8. Let us now turn to some of the decision of this Court in which suits instituted more than six years after the final publication were considered time-barred. The case of Rajani Nath v. Manaram, 1919 Cal 151, upon which the Subordinate Judge has relied, is only an authority for the proposition that if the plaintiff sues for a declaration that the entry is wrong and makes the entry itself his cause of action, he must institute his suit within six years from the final publication and not from the date of the signing of the certificate of such publication. It should be noticed that in that case the plaintiff did not rely on any other cause of action and did not allege that his possession had in any way been disturbed or threatened to be disturbed by the defendant and yet added a prayer for confirmation of possession; and as the learned Judges pointed out:
The only cause of action alleged in the plaint was the alleged wrong entry in the Record of Rights.
9. The same was held in Prodyat Kumar v. Bal Gobinda, 1925 Cal 518 the state of facts being similar. So also in other cases where the cause of action was the entry itself and nothing else, it has been consistently held that the plaintiff must come within six years of the entry e.g. Abdul Gafur v. Abdul Jabbar, 1927 Cal 30; Ashutosh v. Radhika Lal, 1929 Cal 481. It should be noted that in the last of these two cases, while it was said that the entry, by reason of the presumption as to its correctness casts a cloud on the title, meaning thereby that it thus affords a cause of action for a declaration, it was not suggested that the plaintiff was bound to come to dispel the cloud, or, in other words, that if he did not then come for that purpose he would be precluded from challenging the entry in future. In the Patna High Court the principle governing suits of this nature Was enunciated in Brij Behari v. Sheo Shankar, 1916 Pat 120 in these words:
In Amiruddin v. Saidur Rahaman, 1916 Pat 408 it was held that if a suit is substantially such a declaratory suit as is contemplated in the proviso to Section 111-A of the Act, then the plaintiff cannot by adding a prayer for confirmation of possession escape the six years' rule. The point from which limitation is to run is the date of the publication of the adverse entry in the Record of Rights: Ram Gulam Singh v. Bisnu Pargash Narain Singh (1907) 11 CWN 48; Francis Legge v. Ram Baran (1893) 20 All 35.
10. And in the said case it was also clearly pointed out that an entry in the Record of Rights neither creates nor extinguishes rights, but that it is merely a rebuttable piece of evidence. In a later case of the same Court, Ramji Ram v. Lala Sadhu Saran, 1917 Pat 547, the Judges were not prepared to affirm the view propounded in Amiruddin v. Saidur Rahaman, 1916 Pat 408, that if the declaration sought for substantially challenged the Record of Rights, the suit for such a declaration must be instituted within six years of the final publication of the Record of Rights; and laid down the principle in the following terms:
Where there is a definite challenge to the plaintiff's rights by an entry made in the Record of Rights and where the fact is patent that the plaintiff must have been aware of that challenge to the rights, the suit, if brought upon that challenge, must be brought in accordance with the six years' rule of limitation. If, in spite of the challenge, the plaintiff retains possession of the property, he is not required to institute any suit upon that challenge, but may institute a suit at any time within six years of the new challenge which has the effect of prejudicing his rights.
11. There are numerous cases, not under the Bengal Tenancy Act, in which entries in settlement papers, having similar probative value, were alleged to be wrong, and reliefs were asked for on that footing; and it has been consistently held by the Allahabad High Court that independently of the cause of action which arises upon the entry itself, a fresh cause of action justifying a prayer for a declaration and for other appropriate reliefs may arise when on the strength of the entry the plaintiff is put in jeopardy, Kali Prasad v. Harbans, 1919 All 383; Aftab Ali v. Akbar Ali, 1929 All 529, and the authorities referred to in these cases), The prayer for injunction which was there in the present case was, in fact, a prayer for a consequential relief which arose out of claim in the partition proceedings which the defendant put forward on the basis of the entry. So long as the suit was, as it was, instituted within six years of that cause of action the suit was not barred. The appeal therefore should be allowed; and the decree of the Court below being set aside, a decree should be entered giving the plaintiff the declaration and the injunction set out in the beginning of this judgment. The plaintiffs will also be entitled to their costs of the suit and of the appeal as against the contesting defendants. We assess the hearing fee in this Court at ten gold mohurs in each appeal.
12. I agree.