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Sarashijaksha Chatterjee and ors. Vs. Karpur Kamini Deby and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal745,173Ind.Cas.945
AppellantSarashijaksha Chatterjee and ors.
RespondentKarpur Kamini Deby and ors.
Cases ReferredRai Kiran Chandra v. Tarak Nath
Excerpt:
- .....publication was signed on 29th february 1935. the suit was instituted on 16th january 1934. the learned judge thought that as the suit was instituted more than six years from the final publication, the suit was out of time. in this he was in error. under section 111-b, bengal tenancy act, no suit affecting the record shall be instituted within four months from the date of the certificate of final publication for the decision of a question whether there is any special condition or incident of the tenancy. now, in this case, the plaintiff prayed for a declaration that they had the right in respect of certain plots of getting irrigation water from the defendant's tank, that this right had been omitted from the settlement record and that the record ought to be corrected. under sub-section.....
Judgment:

M.C. Ghose, J.

1. These two appeals have been argued together. Appeal No. 124 of 1936 is from Suit No. 835 of 1934. In this case the plaintiffs claimed that they have the right to take water from defendant's tank (Dag No. 1534) for the purpose of irrigating certain plots of the plaintiffs. The trial Court decreed the suit in part. In appeal the suit has been dismissed. Upon hearing the learned advocate on both sides it appears that the learned District Judge misdirected himself on two points: (1) On the point of limitation he thought that the plaintiff's suit for correction of the Record of Rights was barred by limitation. The Record of Rights was finally published on 11th November 1927. The certificate of final publication was signed on 29th February 1935. The suit was instituted on 16th January 1934. The learned Judge thought that as the suit was instituted more than six years from the final publication, the suit was out of time. In this he was in error. Under Section 111-B, Bengal Tenancy Act, no suit affecting the record shall be instituted within four months from the date of the certificate of final publication for the decision of a question whether there is any special condition or incident of the tenancy. Now, in this case, the plaintiff prayed for a declaration that they had the right in respect of certain plots of getting irrigation water from the defendant's tank, that this right had been omitted from the settlement record and that the record ought to be corrected. Under Sub-section (4) of Section 111-B, the period of four months shall be excluded in computing the period of limitation prescribed for such suit. A suit for such a declaration and correction of the record is under Article 120, Lim. Act, and the plaintiffs are entitled to deduct the period of 4 months. In that view the suit is clearly within time: see the case in Ashutosh Bhuiyan v. Radhika Lal : AIR1929Cal481 .

2. In the second place the learned Judge in discussing the evidence disagreed with the findings of the Munsif and in doing so observed that the defendants had no notice of the local inspection made by the Munsif. In this also the learned Judge committed an error. The order sheet of the Munsif shows that on 20th December having heard the evidence of the plaintiff and after examining 5 defence witnesses, it is stated: 'Plaintiffs file a petition for local inspection. The parties are informed that I shall inspect the locality tomorrow.' The order on 21st December is this:

Inspected the locality this morning. Babu Syama Pada Mukherjee and Babu Phani Bhusan Mukherjee, the learned pleaders for the plaintiffs and the defendants, accompanied me. The inspection notes will be filed tomorrow.

3. The learned Judge was there clearly in error in thinking that the defendants had no notice of the inspection. Having regard to these errors of the learned District Judge, the decree made by him cannot be supported. The decree is set aside and the appeal remanded to the lower Appellate Court for fresh hearing according to law.

4. In respect of Appeal No. 638 of 1936 which arises out of Suit No. 137 of 1935, the same mistake has been made as to limitation. Further, the learned Judge considers that the suit is bad under Section 42, Specific Relief Act. Under Section 42 no Court shall make a declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. Now in this case the plaintiffs asked for a declaration that the Record of Rights was wrong and they prayed that the said record might be corrected. The suit was therefore maintainable and the learned Judge was wrong to hold that it did not come under Section 42: see the case in Rai Kiran Chandra v. Tarak Nath : AIR1936Cal456 .

5. The decree of the lower Appellate Court in this case is set aside, and the appeals remanded to that Court for fresh hearing according to law. The appellants in both the appeals will get the costs of this Court. Further costs in both the appeals will abide the result.


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