1. The subject-matter of the litigation which has given rise to this appeal is a tract of land whereof settlement was obtained by one U. Timon from the Government on the 21st October 1884, under a qubuliat executed for a term of ten years. The grantee died shortly after, and left behind him a brother U. Hedlot and two sisters Ka Sengai and Ka Laban. Immediately after his death, his brother, in 1885, got his own came entered in the qubuliat as his successor-in-interest and apparently continued in possession thereafter. U. Hedlot transferred a portion of his interest in the disputed land to some of the defendants on the 22nd March 1887. On the 13th November 1895, the two sisters of U. Timon commenced an action for declaration of title to the disputed land and for recovery of possession. Their case in substance was, that they were Khasias and that under the customary rules of inheritance prevalent amongst them, sisters were entitled to succeed in preference to brothers. The defendants to the suit were U. Hedlot and six other persons who claimed to have derived an interest in the disputed land from him. Apart from objections in bar, one of which related to the jurisdiction of the Court, the claim was resisted substantially by the second and third defendants on the ground that the plaintiffs were not entitled to any interest in the land as it had been acquired by U. Hedlot. The other defendants did not enter appearance. The Court first tried the objection of jurisdiction based upon the value of the. subject-matter of the litigation, and came to the conclusion that the value of the property was within the limits of its pecuniary jurisdiction. The case was then tried on the merits, and a decree made in favour of the plaintiffs on the 18th April 1896. Upon appeal that decree was affirmed by the Subordinate Judge on the 21st September 1897 and a second appeal to this Court was dismissed on the 20th April 1900. Subsequently, the defendants other than the second and third defendants applied to have the ex parte decree made against them discharged. That application was successful and the suit was revived in so far as they were concerned. They resisted the claim on the ground that the Court had no jurisdiction to entertain the suit because the pecuniary value of the subject-matter of the land in dispute exceeded the limits of the pecuniary jurisdiction of the Court. This contention was successful, and the result was that on the 15th January 1905, the Court returned the plaint for presentation to the Court of Subordinate Judge, the plaint was duly presented to that officer on the day following. The case was then tried on the merits. The substantive defence to the claim was two fold; namely, first, that the plaintiffs did not acquire any valid interest in the disputed property, because upon the death of U. Timon there was no interest left which could pass to them by succession; and secondly, that if the interest of U. Timon was transmissible by inheritance, the plaintiffs were not the heiresses of their brother. The Court of first instance decided in favour of the plaintiffs on the 1st June 1908 and that decision was affirmed on appeal by the District Judge on the 24th March 1909. Two of the defendants, the fifth and the seventh, have now appealed to this Court and on their behalf the decision of the District Judge has been assailed on four grounds namely, first, that the suit has not been properly framed, because after the plaint had been returned for presentation to the proper Court, the pleadings ought to have been amended with reference to the circumstances as they stood on the 16th January 1906; secondly, that the suit is barred by limitation; thirdly, that the plaintiffs have acquired no title to the disputed property, because upon the death of U. Timon there was no interest left to be transmitted to them; and fourthly, that if the interest of U. Timon was transmissible, the plaintiffs arts not the heirs of their brother. These arguments have been strenuously contested by the respondents and a preliminary point has been raised on their behalf that the ex parte decree was improperly set aside, inasmuch as after the decree of the original Court had been affirmed on appeal by the Subordinate Judge and on second appeal by this Court, it was not competent to the primary Court to discharge that decree and direct a re-trial of the suit. We must first examine the validity of the objection taken on behalf of the respondents.
2. It appears from an examination of the record that the decree was originally made upon contest as against the second and third defendants, and was made ex parte, as against the others. The second and third defendants alone appealed against the adverse decision of the Subordinate Judge. To that appeal, the only respondents were the successful plaintiffs. The Sub-Judge affirmed the decision of the original Court. A second appeal was presented to this Court by the second and third defendants, and, as in the Court of Appeal below, the only respondents in this Court were the plaintiffs. The decision of the Court of first instance, which has been affirmed on appeal, was confirmed by this Court. Upon these facts, the learned Vakil for the respondents has contended, upon the authority of the decision in Dhonai Sardar v. Tarak Nath Chowdhuri 12 C.L.J. 53 : 5 Ind. Cas. 525 that the decree of the original Court was superseded by the decree of the Appellate Court, and that, consequently, after the appeal had been decided, it was not competent to the primary Court to set aside the ex parte decree even at the instance of persons against whom the decree had been made ex parte and who had not been made parties to the appeal preferred at the instance of the contesting defendants. It may be conceded that the contention of the respondents is apparently supported by the decision upon which reliance is placed, but we are of opinion that this position cannot be maintained on principle. No doubt, when a decree is attached by way of appeal to a superior Court, if the decision of the Court of Appeal affirms that of the Court of first instance, the original decree becomes merged in the decree of the Court of Appeal. But the application of this general principle may be modified by special circumstances. Here, as we have already explained, the decree of the primary Court was challenged on behalf of the contesting defendants. They assailed that decree only in so far as they themselves were concerned and this is conclusively evidenced by the circumstance that they did not join the other defendants as parties to the appeal. When, therefore, their appeal was dismissed and the decree of the Court of first instance was affirmed, it must be taken that the decree of the primary Court was merged in the decree of the Appellate Court only in so far as the original decree affected the two contesting defendants. In so far as that decree affected the other defendants, who had not entered appearance, the Court of Appeal was not invited to consider the matter and to pronounce any judicial opinion thereupon. A similar observation applies to the decree made by this Court. Consequently, the view cannot be maintained that merely because the appeal of the two contesting defendants was unsuccessful, the other defendants were deprived of their remedy, available under Section 108, to have the ex parte decree made against them discharged on proper grounds. The view we take is in accordance with that taken by this Court in the case of Indu Meah v. Dar Baksh Bhuiyan 14 C.L.J. 42 : 15 C.W.N. 798 : 10 Ind. Cas. 275. Much reliance was placed upon the decision in Kumud Nath Roy Chowdhry v. Jatindra Nath Chowdhry 13 C.L.J. 221 : 38 C. 394 : 9 Ind. Cas. 189 : 15 C.W.N. 399 but that case is clearly distinguishable, because there the application to set aside the ex parte decree was made during the pendency of an appeal. Consequently, the question did not arise for consideration, whether it would have been competent to the primary Court to set aside the ex parte decree upon the invitation of the defendants who had not entered appearance, after the appeal preferred by the contesting defendants had been dismissed. We are clearly of opinion that the preliminary point urged by the respondents cannot be supported. We are further of opinion that it is too late for them to take this objection. The suit has been revived and, re-tried. If the plaintiffs were of opinion that the ex parte decree ought not to have been set aside by the primary Court, they ought to have applied to this Court to discharge that order as made without jurisdiction. The objection which the plaintiffs, as respondents, now seek to urge, is not taken, with a view to support the decree in their favour; if it is allowed to prevail, the decree, though in their favour, must be discharged as made without jurisdiction. The preliminary objection is, therefore, overruled, and we proceed to consider the points urged by the defendants in support of their appeal.
3. The first point taken by the appellants is that the suit has not been properly constituted because the plaint, as it now stands, seeks relief on the basis of events as they happened before the 13th November 1893 (the date of the original presentation of the plaint) and all intermediate transactions between that date and the date of the presentation of the plaint in the Court of the Subordinate Judge have been ignored. In support of this proposition reliance has been placed upon Section 57 of the Code of Civil Procedure of 1882 and Section 14 of the Indian Limitation Act of 1877. Section 57 of the Code of 1882 provides that the plaint shall be returned to be presented to the proper Court if a suit has been instituted in a Court whose grade is lower or higher than that of the Court competent to try it, where such Court exists or where no option as to the selection of the Court is allowed by law. Section 14 of the Indian Limitation Act provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence in another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is presented in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. It has been argued on behalf of the appellants, that the combined effect of these two Sections is that when the plaint which has been returned is presented in a Court of competent jurisdiction, the suit must be taken to be instituted on the date of such presentation. In our opinion, this contention is well founded and is not opposed to the decision in Huri Mohun v. Naimuddin 20 C. 41 which was a case of amendment and not of return of plaint Greesh Chunder v. Pran Kishen 7 W.R. 157; Ram Coomar v. Dwarkanath 5 W.R. 207 ; Sham Chand v. Kally Kanth (1863) 2 Hay. 314; Husrutoollah v. Aboo Mahomed 6 W.R. 39. In fact if the contrary view were adopted, the inference would follow that the provisions of Section 14 of the Indian Limitation Act were superfluous: It would have been needless to formulate the rule embodied in Section 14, unless the theory were adopted that the suit was instituted only when the plaint was presented in the Court of competent jurisdiction. Consequently, the view may well be maintained that the plaint in this case ought to have been amended and the plaintiffs required to base their claim to relief on the footing of circumstances as they stood on the 16th January 1906. We are clearly of opinion, however, that the suit ought not to fail on this ground. No such objection was taken in the Court of first instance after the plaint had been presented. If the objection had been taken, the plaintiffs might easily have amended their allegations. It is further plain that the defendants have not, been in any manner prejudiced by reason of the omission of the plaintiffs to amend the plaint. The events upon which the defendants rely have all been investigated by the Courts below. The most important of these, is the settlement with them by the Government after the institution of the suit in 1395. The defendants have, as a matter of fact, throughout contended that the plaintiffs are entitled to relief, if any, on the footing that the defendants are now settlement-holders for a term of 15 years under a lease granted to them on the 1st April 1898. The defendants will be amply protected, as we propose to take this fact into account, and determine thereon the relative rights and liabilities of the parties, this is in accord with the principle that the Court may, for the sake of justice, take into consideration changes in the title pendente lite; Ram Ratan v. Mohant Sohu 6 C.L.J. 74 : 11 C.W.N. 732 and Ramyad v. Bindeswari 6 C.L.J. 102. The first contention of the appellants, though technically correct, must consequently be overruled.
4. In support of the second contention of the appellants it has been argued that the view is barred by limitation, because admittedly defendants and their predecessor U. Timon have been in possession of the disputed land from 1885, while the present suit, for the purpose of limitation, must be deemed to have been commenced on the 16th January 1906. The plaintiffs, however, are clearly entitled to the benefit of the provisions of Sub-section (1) of Section 14 of the Indian Limitation Act. It cannot be disputed that the plaintiffs have prosecuted with due diligence the original suit as against these defendants, and that they have been obliged to institute the present suit, because the first suit could not be entertained by the Court on account of defect of jurisdiction. There can be no controversy that the plaintiffs have throughout acted in good faith. As already stated, the second and third defendants raised the objection of valuation at the original trial. Upon evidence, the Court held that the objection was groundless. At the instance of the present appellants, however, the Court subsequently, on the revival of the suit came to the conclusion that the objection was well founded. Under these circumstances, in view specially of the divergence of opinions, expressed by the Court on the two occasions, it is clear that absence of good faith cannot be imputed to the plaintiffs. It is further plain, that as against the present defendants, the suit must be treated to have been pending from the 12th November 1895 when the suit was instituted up to the 15th January 1906 when the plaint was ordered to be returned for presentation to the proper Court. This is so, irrespective of the proceedings by way of appeal at the instance of the second and third defendants to which the present defendants were not parties. If the period, between the 13th November 1895 and 15th January 1906, is excluded, it is clear that no question of limitation arises, because the dispossession by the defendants took place after the death of U. Timon in 1885. The view we take is in accord with that previously taken by this Court Takhuroodeen v. Kurimbux 3 W.R. 20 Khellat Chunder Ghose v. Nusseeb-un-nissa 16 W.R. 477. The second contention of the appellants must, therefore, be overruled as untenable.
5. In support of the third ground, it has been urged that upon the death of U. Timon his interest terminated and consequently even if if be assumed that his sisters were the heiresses-at-law, they did not acquire any interest by inheritance. In our opinion, this contention is not well founded. In the first place, it is clear that as the lease in favour of U. Timon was for a term of years, it did not terminate with the life of the grantee, As was observed by their lordships of the Judicial Committee in the cases of Tej Chand v. Sreekanth Ghose 3 M.I.A. 261 : 6 W.R. 48 (P.C.); Baja Burdakanth Roy v. Aluk Munjoore Dasiah 4 M.I.A. 321 and Gobind Lal Roy v. Hemendra Narain Roy Chowdhury 17 C. 686 in the absence of a specific provision to that effect, a lease for a fixed term of years does not terminate upon the expiration of the stipulated term by the mere fact of the death of either the lessor or the lessee. Upon the death of U. Timon, therefore, there was a transmissible interest which vested in his heirs by succession. We shall assume, for the present, that his two sisters were the heiresses. Notwithstanding the fact that they were heiresses, the brother of U. Timon took possession of the property and got his name entered in the qubuliat as the successor-in-interest of the original grantor. This happened in May 1886, before Regulation I of 1886 had come into operation on the 1st July 1886. It cannot be disputed that before the Regulation came into force the rights of the parties were governed by the terms of the contract between the grantor and grantee, as also the customary rules of inheritance to which the parties were subject. The mere recognition by the grantor of the brother as successor of the original grantee, obviously, did not prejudice the position of the heiresses. The question, therefore, arises whether when the Regulation came into force, it altered the status and rights of the parties. Now Section 8 of the Regulation deals with the question of the status of land-holders and the mode in which that status may be acquired. Sub-section (1) of Section 8 is divided into two Clauses (a) and (b) which deals with two different set of circumstances. Clause (a) provides for the case in which a person has, before' the commencement of the Regulation, held immediately under the Government for 10 years continuously any land not included either in a permanently settled estate or in a revenue free estate, and who has during that period paid to the Government the revenue due thereon, or held the same under an express exemption from revenue. Clause (b) deals with the case in which a person, whether before or after the commencement of the Regulation, acquired any such land under a lease granted by or on behalf of the Government the term of which is not less than 10 years. Bach of such persons is under Section S deemed to have acquired the status of a land-holder in respect of the land. It is obvious that Clause (a) has no application to the circumstances of the present case because IT. Timon did not, before the commencement of the Regulation, hold for 10 years continuously the disputed land under the Government. Clause (b), on the other hand, plainly applies to the case; but it has been argued that in view of Sub-section (2) of Section 8, the operation of Clause (b) is excluded. Sub-section (2) provides that when land held by one person has come, immediately by transfer or succession to be held by another, the holding shall, for the purpose of Sub-section (1), Clause (a), be deemed to have been continuous, and the latter person may, in reckoning the length of his holding, add the holding of the former to his own. It has been argued in substance for the appellants that as Sub-section (2) is limited in its application to cases falling within Clause (a) of Sub-section (1), Clause (b) of Sub-section (1) cannot be applied to the circumstances of the present case. In our opinion, the contention is not well founded. The Legislature did not extend the application of Sub-section (2) to cases under Clause (b) of Sub-section (1) for the obvious reason that it was needless to do. Clause (b), as we read it, applied to a case in which a person has acquired land, not merely because it has been directly settled with him by the Government but also because he has obtained it from the original grantee by transfer, succession or otherwise. In our opinion, Clause (b) may be read so as to include a case in which a person has, before the commencement of the Regulation, acquired the land by inheritance from a parson with whom it has been settled by the Government under a lease for a term not less than ten years. The learned Vakil for the appellants does not dispute that the term 'acquired' may be interpreted in the wider sense just indicated. But he contends that a narrower construction may very well be put upon it. We are of opinion that the restricted interpretation suggested ought not to be adopted and we are fortified in this view by the circumstance that the Legislature has not thought fit to make the provisions of Sub-section (2) applicable to cases covered by Clause (a). The policy of the Legislature is obvious. In the case covered by Clause (a) where title is acquired by continuous possession for ten years, the Legislature provides that the possession of the successor-in-interest may be added to the possession of the previous holder. In a case comprised within Clause (b) it is not necessary to make a provision of this character, because the original grantee holds under a lease and the interest of the successor-in-interest may be talren to have been acquired for hira, whether it has been acquired by succession, transfer or any other manner. The present case is thus completely covered by Clause (b) of Sub-section (1). It has been finally argued by the learned Vakil for the appellants that the sisters of the original grantee cannot be said to have acquired the land, because admittedly they never obtained possession. It has been argued in. substance that the term acquired' connotes entirely over the property; in other words, that a person cannot be said to have ' acquired' land unless he has acquired physical possession thereof. We aro not prepared to accept this contention as well founded; the ordinary meaning of the term 'acquired' undoubtedly does not lend any support to this argument. The true position, therefore, is that upon the death of U. Timon and in spite of the hostile act of his brother his sisters became the owners of the interest originally vested in him, and as soon as the Regulation came into force on the 1st July 1888, the sisters became land-holders within the meaning of Clause (b) of Sub-section (1) of Section 8 of the Regulation. Once the conclusion is firmly established, the case proves reasonably plain and free from difficulty. Section 9 provides that a land-holder shall have a permanent, heritable and transferable right of use and occupancy in his land, subject to the payment of revenue and the other items mentioned in Clause (a) and subject also to other conditions needless to enumerate for our present purposes. Consequently, it cannot be maintained that upon the expiry of the term of ten years fixed in the lease of the 21st October 1884, the interest of the sisters completely terminated; they were completely entitled to claim settlement from the Government. True it is, that they have not done so. But it is plain from the other parts of the Regulation, to which we shall presently refer, that their rights have not been affected by the settlement made with their brother. Section 39 provides that no person shall, merely on the ground that a settlement has been made with him or with some person through whom he claims, be deemed to have acquired any right to or over any estate as against any other person claiming rights to or over that estate. The same doctrine is recognised in Section 62, which provides that nothing contained in Chapter IV of the Regulation and nothing done in accordance therewith, shall be deemed to preclude any person from bringing a suit in the Civil Court for possession of a declaration of his right to any immoveable property to which he may deem himself entitled. Consequently, the inference is irresistible that in spite of the Settlement of 1898, the plaintiffs, as the sisters of the original grantee, are entitled to recover the property from the hands of the brother who has unlawfully seized it. The view we take is supported by the decision of this Court in the cases of Madhub Nath Surma v. Myarani Medhi 17 C. 819 and Patan Maria v. Bhabiram 24 C. 239 : W.N. 94. The third ground upon which the decree of the District Judge is assailed cannot consequently be supported.
6. In so far as the fourth ground is concerned, it raises a question of the customary rules of inheritance which govern the parties to the suit. It has been argued that the District Judge has overlooked the fact that the plaintiffs are not Khasias but Syntings, and has, therefore, erroneously applied to the plaintiffs a rule of succession which obtains only amongst Khasias. We are of opinion that there is no substance in this contention. It may be conceded that in the settlement proceedings it was alleged that the plaintiffs were not Khasias but Syntings and that the customs and usages of the Khasias and Syntings were radically distinct. When the case came to be argued, however, before the Courts below, it does not appear to have been urged that the customary rules of inheritance were different in the two classes. In so far as we have been able to gather, the name Synting is applied properly to person residing in the Jaintia hills, but as they are the residents of the Khasia hills are popularly known as Khisias. The Sub-Judge found upon the evidence that amongst the Syntings, a sister inherits the property of her brother in preference to a brother. This conclusion is supported not merely by the oral evidence but also by the opinion of experts. [The Khasias by Major Gardon; Statistical Accounts of Assam by Sir William Hunter, Volume II, 203, 489; Diary of Mr. Heath; Report of Mr. Shadwell]. When the matter was taken on appeal before the District Judge, objection was taken to the judgment of the Sub-Judge, not on the ground that different rules govern the Khasias and the Suntings in this respect, but that he had misconceived the evidence as to the rules of succession amongst the Khasias. It was further urged that the rules of inheritance, so far as the Khasias are concerned, did not apply to the case. The District Judge has overruled all these objections, and, in our opinion, rightly done so. It is plain from the record that the distinction now sought to be raised was never suggested in the Courts below. We may further observe that this point might and ought to have been raised at an earlier stage of the case when upon the death of the original plaintiffs their daughters applied to be brought on the record as their representatives-in-interest. They were allowed, however, to be substituted without any question, The District Judge held upon the evidence that the rule of succession applicable to the case was that which prevailed amongst the Khasias, namely, that a sister succeeds to the estate of her brother in preference to a brother. This conclusion, in our opinion, cannot be successfully assailed, and the fourth ground of appeal, must be nagatived. The result is that Jill the objections taken by the appellants fail, and the appeal is accordingly dismissed with costs.