1. The plaintiff-appellant now asks for a declaration that a certain tenancy comprised in khatian No. 5 of Mouza Pathakata, granted by defendant 1 in favour of certain persons, who will by referred to as the Pals, is a tenure which affects the interest of defendant 1 only and is not admitted to be a permanent tenure by the plaintiff. The dispute arose in connexion with certain partition proceedings taken by the Collector of Mymensingh under the Estates Partition Act. The subject-matter of the case was touzi No. 144 and the proceedings were started in the year 1914. The lands form part of Pargana Sherpore and were held ejmali with certain other estates. The first stage before the Collector was to decide what lands should be allotted to the estate actually under partition. The proceedings were held up by a title suit which was eventually compromised. In due course, the Deputy Collector proceeded to take action under Chap. VI of the Act. The dispute actually came to a head when he was making an order under Section 46(1)(iii) of the Act. The plaintiff raised an objection which was overruled. He then fought his point through the various Revenue Courts, his objection to the Board being finally rejected as barred by time on 3rd December 1926. The present suit was filed on 19th September 1930. Subsequent to that, a case for partition of the estate held between the plaintiff and the respondent was instituted before the Collector. The Deputy Collector decided that the lands comprised in the disputed tenancy should not be allotted to touzi No. 144.
2. Both the Courts below have held that the disputed tenancy is a tenure and not a raiyati holding. The Subordinate Judge dismissed the suit holding (1) that it is barred by Section 119, Estates Partition Act, and (2) that it is barred by limitation, as in his view Article 14 applies. The Additional District Judge has overruled him on both points holding that Article 120, Limitation Act, applies. He has however upheld the decree, as in his opinion no case had been made out by the plaintiff within the terms of Section 42, Specific Relief Act. In dealing with this matter the learned Additional District Judge did not clearly distinguish between the questions whether there was any cause of action made out and whether the Court should, in exercise of its discretion, grant a mere declaratory decree. Most of the reasons given by him are relevant to the latter rather than the former. The dispute is due to the definition of the term 'assets' in Section 3, Estates Partition Act. The contention of the appellant was that the 'assets' should be the 'rents' received by the Pals from their tenants, while the respondent contended that the 'assets' should be the 'rents' paid by the Pals to him. One of the terms of the com. promise in the title suit was that this tenancy would be allotted to the saham of the respondent in which case no prejudice would be caused to the Pals. On the other hand, if the Deputy Collector refused to give effect to the terms of the compromise, the Pals would be protected by Section 99 of the Act. The Deputy Collector disposed of the question without coming to any decision on the real point at issue. He said that the tenancy was either a raiyati jote or a tenure admitted by all the recorded proprietors to be a permanent tenure subject only to the payment of an amount of rent fixed in perpetuity. In either event, the 'assets' would be the 'rents' payable by the Pals to the respondent.
3. The first point for our decision, accordingly, is whether the plaintiff has been able to make out any case entitling him to the relief claimed. For this purpose it is necessary to examine the plaint. This document might possibly have been drawn up in clearer terms; but at any rate there is no doubt at all that the plaintiffs' case is that the cause of action arose in connexion with the partition case. The history of the matter is set out in para. 4. The right claimed by the plaintiff is that the tenancy created by the respondent is a tenure which in no way binds the interest of the plain, tiff. The respondent certainly had an interest to deny this right as soon as the partition case was started in the year 1914. There can further be no question that he actually did so at some time in the course of the proceedings. Accordingly, in our opinion, the plaint does disclose a cause of action.
4. We are however not prepared to grant the plaintiff a mere declaratory decree for the following reasons: In the first place, we cannot see how such a decree would serve any useful purpose whatever. The position in the first Court was very differ, end. The prayer made there was not merely for a declaration as to the nature of the tenancy but a further declaration in the nature of an order on the revenue officers to the effect that the rents payable by the tenants to the Pals should be taken as the assets for the purpose of making a partition. There was clearly some object in a declaration of this kind. The learned Subordinate Judge however rightly held that he had no jurisdiction to order the revenue officers to make the partition in a particular way. This part of the claim was not pressed in the lower Appellate Court. The result is that, when the only sting in the declaration is taken out of it, no useful purpose would be served by granting such a relief. Secondly, we are not satisfied that the present prayer is bona fide. It is only necessary to read the plaint in order to see that the real object of the suit was to get rid of the decision of the revenue officers. For example, para. 5 contains an averment to the effect that it is necessary to have a decree declaring that the aforesaid decision of the revenue authorities is erroneous. When once it has been held that it is not open to the Civil Courts to give a direction it the revenue officers, there is no longer any case for giving a mere declaration as to the nature of the tenancy. It could only be used as a sort of hint to the revenue officers strongly suggesting that they ought to carry out their duties in a particular manner. In the third place, the moment chosen for the institution of this suit was singularly inopportune. The matter was being dealt with by the Deputy Collector in the suit for the partition of estate No. 144. The question had been finally decided. The case for the partition of the estate, belonging to the plaintiff and the respondent, had not even been instituted. There was thus no reason at all for asking for this declaration at the time when the suit was filed. In the fourth place, the Pals are not fully represented before us. That the plaintiff fully understood the position is clear from the fact that he filed an application asking that the Pals might be added as defendants on 16th April 1931. They were actually added as parties in consequence of this prayer. Gagan Pal however died during the pendency of this appeal and the appellant failed in his attempt to make Gagan's heirs parties to the appeal.
5. Mr. Gupta contended that the matter is of no importance as the Pals have really no interest in the partition proceedings, as in any view of the matter their interests will be protected. I do not pretend to know whether the Pals would prefer to keep the lands demised rather than be given compensation under the provisions of Section 99. But be that as it may, if this tenancy is a tenure for one purpose, it is a tenure for all purposes. It would be quite idle to contend that the Pals have no interest in the question whether they are tenure-holders or raiyats. They obviously have. Any decree that we might make would not bind the heirs of Gagan Pal and we are certainly not prepared to give a mere declaratory decree which will not bind all parties interested in the subject-matter of the suit. Mr. Bose on behalf of the respondent attempted to support the decrees of the lower Courts on two grounds: Firstly, that the suit was barred by Section 119, Estates Partition Act, and secondly that it was barred by limitation. Now, there was no issue which specifically raised the question of Section 119. It is perfectly true that the learned Subordinate judge came to a decision on the matter but he did so in a rather indirect manner. But from what I have already said, it is clear that that Section could not possibly be a bar to the present suit.
6. With regard to limitation Mr. Bose contended that the learned Subordinate Judge was correct in holding that Article 14 applies. He could not allege that the present suit comes within the terms of that Article sub he contended that that Article applies on the principle that when the real object of a suit is to set aside a certain order, then, the appropriate Article is the Article which applies to a suit directly instituted for that purpose. As an illustration of that principle, I may refer to the cases in Raghu Nath Prosad v. Kaniz Rasul (1902) All. 467 and Gangu v. Mahanraj Chand (1934) 21 A.I.R. Lah. 384 In my opinion, limitation depends upon the cause of action set out in the plaint and the relief claimed. I very much doubt whether the ulterior object or motive at the back of the mind of the plaintiff could have anything to do with it. If an order passed by a revenue officer is a bar to the relief claimed, then the suit will fail if that bar has not been removed. But that is quite a different thing from saying that the suit is barred by limitation. However, in the present case, even this principle would not apply, because the orders made by the revenue officers are not a bar to this particular relief.
7. We are therefore of opinion that the learned Additional District Judge rightly held that Article 120 applies to the suit. Time began to run when the right claimed by the plaintiff was first challenged by the respondent. The date given in the plaint is 18th December 1925, when the Commissioner dismissed the plaintiff's appeal against the order of the Collector. Mr. Gupta had to concede that this is wrong. It is quite obvious that the order made by the Commissioner had nothing whatever to do with limitation in this case. This averment in the plaint is a mere indication of what was actually at the back of the plaintiff's mind. So far from this giving rise to a cause of action, it was the date when the interest of the respondent to deny the plaintiff's claim came to an end. In order to determine who there the present suit is barred by limitation, it will be necessary to find out on what date the respondent first challenged the plaintiff's claim in the partition case, that Is to say, the date when he first put forward his case that the tenancy in question is a raiyati holding. There is no evidence on the point and the result is that on the materials in the record it is impossible for us to say whether the suit is barred by limitation or not. Had it been necessary to determine the matter, we should have directed that further evidence be taken. The appeal is dismissed with costs.
Latifur Rahman, J.
8. I agree. I desire only to point out that the plaintiff-appellant has pleaded that it is necessary to have a decree declaring that the decision of the revenue authorities is erroneous, and has prayed that a decree be passed declaring that defendant 1 alone had no right to create an intermediate tenure at a fixed rent and therefore partition by the Collector should be made on the basis of rayati jamas. Having failed in his attempt to secure his object before the revenue authorities he has invoked the aid of the Court in the hope of obtaining a decree under the provisions of Section 42, Specific Relief Act, which in effect will supersede the orders passed by the revenue authorities. To my mind, the suit which the plaintiff has instituted is not a bona fide one and is intended only for the purpose of evading the provisions of the Estates Partition Act.