1. These appeals arise out of a suit for possession of an undivided one-fourth share of three villages appertaining to Estate No. 6572 in putni and sardar putni rights.
2. It appears that two persons Nilkant and Umakant who were proprietors of a 19 gundas and odd share in Touzi No. 4515 let out their share in 20 villages in putni to plaintiff's predecessor at a jama of Rs. 142-8-0 on the 32nd Sraban 1272. All these 20 villages are situate on the west bank of the river Ghagar. Subsequently on the 23rd Bysack 1281 (5th May, 1874) they granted a sadar putni in respect of one-fourth of their 19 gundas and odd share in all the mouzahs of the estate including the 20 villages (which had been previously granted in putni) at a rent of Rs. 25 to the plaintiffs. On the next day (24th Bysack, 1281-6th May, 1874) an ekrar was executed between the lessors and the lessees by which it was agreed that the plaintiff's (the lessees) would remain in possession of 19 gundas and odd share of all lands in the mouzahs and kismats (in the 20 villages) and an additional mouzah Kusla on the west bank of the river Ghagar in their putni and sadar putni rights, and that the lessor would possess the remaining mouzahs to the east of the river. Out of the 19 gundas and odd share which belonged to Nilkant and Umakant, 15 gundas were sold at auction and purchased by one Nanda Kumar who again sold the same to one Iswar Chandra, husband of Rashmoni and the predecessors of defendants Nos. 11-25, After the purchase by Iswar, there was another ekrar, dated 27th August, 1890, between him and the plaintiffs by which the first ekrar was confirmed, and the plaintiffs were in possession of the 21 mouzahs on the west bank of the river on payment of rent. Subsequently, how-ever, Iswar Chandra on the Kartick 1297 (31st October, 1890) granted a sadar putni of his 15 gundas share of all the lands on both banks of the river to the predecessors of defendants Nos. 1 to 10.
3. In 1905 the parent estate (No. 4515) consisting of 68 villages was partitioned under the Estates Partition Act into 28 separate estates of which Estate No. 6572 represents the 15 gundas share of Iswar. 4 out of the 68 villages were allotted to Estate No. 6572-three, viz., Dharapasail, Patiljhapra and Chota Dumaria on the east bank, and the fourth Majbari on the west bank of the river. On the 27th December, 1905, the defendants Nos. 1 to 10 settled 631 bighas of Majbari with one Chandra Kumar Mookerjee and Lalit Mohun Mookerjee. The plaintiffs allege that they took possession of the whole 631 bighas of Majbari and its kistmats, but that in the settlement proceedings although the entire lands were at first recorded in their names, as a result of a dispute raised by Chandra Kumar and Lalit Mohun only 36 bighas were recorded in the names of the plaintiffs and the remaining lands were recorded in the names of the latter, and being accordingly dispossessed they brought Suit No. 3 of 1912 for declaration of their putni and sadar putni rights to the entire 631 bighas of lands of Majbari. The suit was decreed on the 15th July, 1913, the Court holding that mouzah Majbari had been allotted to the lessor of the plaintiffs, and relied upon the sadar putni putta of 1281 read with the ekramama. The defendants in that suit appealed, and on appeal the decree of the Trial Court was confirmed on the 3rd July, 1914. Then a second appeal was preferred by the said defendants, and while the second appeal was pending the present suit was instituted in respect of 283 bighas being the difference between 914 bighas (to which the plaintiffs' lessors were entitled) and 631 bighas for which the plaintiffs obtained a decree in Suit No. 3 of 1912. The present suit was instituted on the 14th April, 1917. On the 28th August, 1918, the second appeal to the High Court was allowed. The material portion of the judgment of the High Court is as follows:
It is now undisputed that the estate was held in common tenancy. The proprietors of the 19 gundas share in it had given a portion of their share in sadar putni ' to the plaintiffs or their predecessors, and it follows that after the partition the tenure held good as regards the lands finally allotted to the share of such proprietors or their successors and only be such lands. That is to say, the interest of the plaintiffs in 20 of the 21 mouzahs, that were the subject of the 'sadar putni' have been extinguished and the tenure holds good as regards the four mouzahs allotted to this share. Before the partition a portion only of the 19 gundas share was, as has just been observed, subject to the 'sadar putni,' since it appears that the 21 mouzahs were a portion only of the undivided estate. Plaintiffs have therefore a right to a share of the rents of the above-mentioned four mouzahs but the extent of that share we do not at present know. All that can be said is that they have a 'sadar putni' interest to some unascertained extent in the four mouzahs allotted to their landlords. The claim that they have put forward to an exclusive interest in one portion of this area, a portion of their own selection, is unfounded and in allowing it the Courts below have taken an incorrect view of the law.
' The plaintiffs appear to have relied in the Courts below only on Section 99 of the Estates Partition Act and it is on that basis that they have obtained their decree. But it has been argued in this Court that they can also rely on the terms of the contract under which they held this 'sadar putni,' since, that contract gave them the said interest in mouzahs situated to the west of the river. This contract, however, in so far as it fixed the particular lands that were to be subject to the tenure was extinguished by the partition and by the operation of Section 99 of the Estates Partition Act and the contract cannot asset the plaintiff in securing an interest in any particular land in the new estate.
4. On the 30th August, 1918, the learned Judges in view of certain statements and arguments, made a declaration that 'the plaintiffs are entitled to one-fourth undivided share of the lands in dispute and to joint possession thereof with defendants Nos. 3 to 8.' Thereupon the plaintiffs applied for amendment of the plaint in the present suit on the 13th January, 1919, by claiming 1/4th share in the three villages on the east bank of the river. The amendment was allowed on the 24th April, 1919, but at the hearing of the suit the Court below held that the claim in excess of 283 bighas (originally claimed in the suit) was barred by limitation, and accordingly gave a decree for only 1 anna 10 gundas 2 karas and odd share of the 3 villages in sadar putni right.
5. The plaintiffs have preferred Appeal No. 75 of 1920, and the defendants are appellants in No. 78 of 1920. The main question for consideration in both the appeals is, whether the amended claim is barred by limitation. If the amendment was properly allowed, the claim would not be barred, and the question therefore is whether the amendment was properly allowed. Now, at the date when the present suit was instituted the plaintiffs had obtained a decree in their favour in respect of 631 bighas of land of Majbari, both in the Trial Court and in the Court of Appeal (in Suit No. 3 of 1912). So long as that decree was not set aside they could not sue for lands in the three other villages. The Court in second appeal in that suit held on the 28th and 30th August, 1918, that the ekrars had become inoperative by the partition, and the plaintiffs then applied for amendment on the 13th January 1919, by claiming the lands of the three villages on the east bank of the river.
6. The plaintiffs rely upon the principles of suspension of time which has been laid down in some cases. The question of suspension of the period of limitation is one upon which the authorities do not seem to be uniform. In the well-known case of Surno Moyee v. Shoshee Mukhee Burmonia (1868) 12 M.I.A. 244 the Judicial Committee in determining whether the cause of action accrued with reference to Section 32, Act X of 1859, at the end of each Fasli year when the rent became due, or at the date of the decree reversing the auction sale of the putni taluq belonging to the zemindar, decided in favour of the latter date. That therefore was a case in which the question was when did the cause of action arise for the suit, and it was not really a case of suspension of the period of limitation. The case of Hukum Chand Boid v. Pirthi Chand Lal Chaudhury A.I.R 1918 P.C. 151 is also not a case of suspension of the period of limitation. Their Lordships held that the sale had not become final and conclusive; in other words, for the purpose of the question of limitation the sale had not become absolute. On the other hand in the case of Soni Lal v. Kanhaiya Lal (1913) 35 All. 227 where there was a fusion of the interests of the mortgagor and the mortgagee for a certain period, and it was contended that limitation was suspended for that period, their Lordships observed:-' There is nothing in Act XV of 1877 which would justify this Board in holding that, once that period of limitation had begun to run in this case, it could be suspended. Their Lordships consider that if they were to hold that by reason of the fusion of interests between 1883 and 1898 the period of limitation was suspended, they would-this not being a suit to which the proviso to Section 9 of the Act XV of 1887 applies-be deciding contrary to the express enactment of that section that when once time has begun to run no subsequent disability or inability to sue shops it.' But in the case of Lakhan Chander Sen v. Madhusudan Sen (1907) 35 Cal. 209 this Court acting upon the principle of the cases of Ranee Surno Moyee v. Shoshee Mukhee Burmonia (1868) 12 M.I.A. 244 and Prannath Roy Chaudhury v. Rookea Begum (1859) 7 M.I.A. 323 held that the plaintiff's right to bring an action was suspended for a certain period. The decision of this Court was approved by the Judicial Committee in the case of Nrityamoni Dasi v. Lakhan Chandra Sen A.I.R. 1916 P.C. 96. In that case two out of three brothers were dispossessed of their shares in certain properties by the third brother. One of the brothers who were dispossessed brought a suit for recovery of possession of his share as against the other two brothers as defendants. One of the defendants supported the plaintiff, and set up his own right to one-third share in the property. It appears that an issue was raised as between the co-defendants as to whether the defendant who supported the plaintiff was entitled to a certain share. The Court actually passed a decree not only in favour of the plaintiff but also declared that the defendant had one-third share. On appeal the decree of the Trial Court in favour of the plaintiff was upheld) but was set aside so far as the defendant was concerned. It was in these circumstances that this Court and the Judicial Committee held that, limitation was suspended from the date of the decree of the first Court to the date when that decree was set aside on appeal. The Judicial Committee observed as follows:- ' Limitation would not doubt run against them from that time. But it would equally without doubt remain in suspense whilst the plaintiffs were bona fide litigating for their rights in a Court of Justice. They had in the suit of 1896 before Mr. Justice Henderson associated themselves with the plaintiffs in that action and had asked for an adjudication in those proceedings of their rights. A distinct issue was framed in respect of their claim to which no objection scorns to have been made by the appellant. It was an effective decree made by a competent Court and was capable of being enforced until set aside. Admittedly, if the period during which the plaintiffs were litigating for their rights is deducted, their present suit is in time. Their Lordships are of opinion that the plea of limitation was rightly overruled by the High Court.' A Full Bench of the Madras High Court in the case of Muthu Korarkai Chetty v. Madar Animal (1919) 43 Mad. 185 considered the decisions of the Judicial Committee on the question of suspension of limitation and one of the learned Judges (Seshagiri Ayyar, J.) observed:-' The true rule deducible from these decisions of the Judicial Committee is this: That subject to the exemptions, exclusion, mode of computation, and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party. This is a rule of construction and not a rule of law. I would answer the reference as above leaving each case to be dealt with in the light of these observations.'
7. It is contended on behalf of the defendants that the decision of the High Court did not give rise to any new right, it merely declared what effect the partition had upon the rights of the parties, and that it was open to the plaintiffs, and in fact they were bound, to claim according to the result of the partition, in the suit of 1912 as well as in the present suit, at any rate in the alternative. No doubt if they had brought the suits upon the result of the partition, no question of limitation would have arisen, but they obtained a decree in two Courts. The question is, could they, when they brought the present suit, claim on the basis of the partition while that decree stood unreversed? Such a claim (until that decree was set aside) would have been infructuous. In Bassu Koer v. Dhum Singh (1888) 11 All. 47, Lord Hobhouse observed: -' It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not.'
8. It is contended by the learned Pleader for the defendants that the partition was sanctioned by the Commissioner on the 1st February, 1905, and the Collector began to deliver possession to the sharers according to the partition from the 25th May, 1905 (or 18th June, 1905) so that the co-sharers were entitled to the respective allotments from the 1st February, 1905, at any rate from the 25th May, or 18th June, 1905; that if time runs from the 1st February, 1905, then the suit was barred on the 14th April, 1917, when it was instituted and was in time if time ran from the 25th May, 1905, but was barred on the 13th January, 1919, when the application for amendment was made. It is urged that the cause of action for the suit arose when the partition was sanctioned by the Commissioner as any rate, when possession was delivered, and no new cause of action accrued by reason of the decision of the High Court: there was no question of possession and dispossession, because the plaintiffs were never in possession of any lands to the east of the river. That is so, but the delivery of possession in the partition proceedings among the proprietors did not disturb the actual possession of the plaintiffs in the Majbari lands. It was only when in the record-of-rights recorded the names of Chandra and Lalit that dispossession of the plaintiffs took place. Thereupon they brought the suit of 1912 and a competent Court gave them a decree (though subsequently held to be erroneous by the High Court), and so long as that decree was in force the plaintiffs could not sue for the lands in the three villages on the basis of the partition.
9. It is further contended that the plaintiffs ought not to have been allowed to amend the plaint because after the partition the claim in the previous suit cannot be said to have been a bona fide one. But it is difficult to hold that it was not bona fide when two Courts concur in decreeing the claim, although the final Court of appeal held the decree to be erroneous.
10. If the period between the date of the institution of the suit of 1912 and the date of the decree of the High Court in second appeal, viz., 28th August, 1918, be deducted, the amended claim would be in time. We are accordingly of opinion that the suit is not barred by limitation.
11. In Appeal No. 78 another contention is raised on behalf of the defendants, viz., that Section 99 of the Partition Act has no application to the present case, as that section applies only to cases where 'the proprietor of an estate held in common tenancy' ...has given his share or portion thereof in putni or other tenure or on lease, and not as here, to cases where a specific portion of the estate is let out in putni. But in the first place the putni lease to the plaintiffs was in respect of 19 gundas and odd undivided share, though by a subsequent ekrar they were to hold certain specific mouzhas on the west bank of the river. In the next place, the question whether Section 99 is applicable to the present case is res judicata between the parties by reason of the decision in the suit of 1912 as pointed out by the Court below. Lastly, the words used are comprehensive enough to cover a case like the present. The construction of the section as pointed out in the case of Jay Sankari Gupta v. Bharat Chandra Burdhan (1899) 26 Cal. 434 is not quite free from doubt. But the principle enunciated in the section merely follows the well-recognised principle, namely, that an encumbrance of an undivided share of an estate is transferred to the lands allotted to the share of the person who created the encumbrance on a partition with his co-sharers. The view put forward on behalf of the defendants was taken by Mr. Justice Rampini in the case cited above; but he was overruled by the Court of appeal. The learned Judges, Maclean, C.J. and Banerji, J., observed as follows:-'The one reason urged in support of this view is that Section 128 applies only to case in which a share or a portion of a share, that is, an aliquot part of a share is let out and that it does not apply to a case like the present in which the share of lessor in certain definite plots of land is let out. The words ' portion of an estate ' in the section are, however, wide enough to include a case like the present, a co-sharer's share in any definite plots of land included in a joint estate being as much 'a portion of share' as an aliquot part of a share is, though the illustrations to the section no doubt lend support to the opposite view.' That principle was also followed in the case of Brojo Nath Saha v. Dinesh Chandra Neogi (1910) 21 C.L.J. 599 and in the unreported cases, Appeals from Original Decrees Nos. 229 and 278 of 1915 decided on the 28th June, 1917.
12. The learned Pleader for the defendants relied upon the cases of Hridoy Nath Saha v. Mohobutnessa (1892) 20 Cal. 285, Syed Abdul Latif v. Amanuddi (1909) 15 C.W.N. 426, Nagendra Mohan Roy v. Pyari Mohan Saha (1915) 43 Cal. 103 and Tulik Singh v. Jalal Singh (1909) 11 C.L.J. 136. But in the first two cases there was a previous private partition, and the lauds therefore were not held in common tenancy. In the third, the learned Judges held that Section 99 applies only where the lands are held jointly by the proprietors and not in severalty in pursuance of a private arrangement between the parties, and observed that the view was not opposed to the decision in Joy Sankari Gupta's case (1899) 26 Cal. 434 where the lands were held not in severalty but in common tenancy.
13. The last case was that of a mortgagee whose possession was disturbed and the main question was whether he could sue for the mortgage money. The learned Judges, however, made some observation that Section 99 does not apply to a case where certain definite and specific lands marked by metes and bounds are given, but having regard to the latest case on the point (the unreported case referred to above), we think that Section 99 applies to the present case.
14. Appeal No. 75 should therefore be allowed with costs and appeal No. 78 discussed, the result being that plaintiffs would got possession of an undivided 4 annas share of the three villages in suit in sadar putni right.
15. The plaintiffs will get only Rs. 400-1-3 as costs of the Court below as directed by the decree of that Court. Hearing fee in Appeal No. 75 is assessed at 10 gold mohurs. We make no order for costs in Appeal No. 78.