1. The plaintiffs brought the suit out of which this appeal arises for a declaration that the land described in the schedule to the plaint did not appertain to Zemindari No. 162 but appertained to Mahal No. 1170 of the Dacca Collectorate. The first defendant who has appealed before me filed a written statement admitting that the 14 annas share of the disputed land appertain to Mahal No. 1170. He farther stated that he had no objection to the said 14 annas being partitioned as appertaining to Mahal No. 1170. In the First Court the only issue that was tried on these pleadings was whether the plaintiffs had any cause of action. That issue was determined in the plaintiffs' favour and the suit was decreed with costs. In the decree it was directed that 'it be declared that the alleged 14 annas share of the disputed land appertain to Mahal No. 1170 taluk Mahadeb Roy and not to Zamindari No. 162 and that the said 14 annas share of the disputed land should in partitioning the said Mahal No. 1170 be taken as appertaining to the same.' Against this decree the first defendant appealed and in the lower Appellate Court he, for the first time, raised a plea that the plaintiffs suit was barred by limitation under Article 14 of the Schedule 1 of the Indian Limitation Act. The lower Appellate Court held that as the suit had been instituted one year after the order of the Deputy Collector under Section 88 of the Estates Partition Act it was time barred, but as the plaintiffs denied the factum of notice as required by Section 88 of the Estates Partition Act and there was no assertion against that denial, the defendant could not be allowed to take up that point at that stage.
2. It is contended on behalf of the appellants that the plea of limitation can be taken at any stage of the case, and that under Section 3 of the Limitation Act the Court of Appeal was bound to give effect to this plea when raised. But in order that this plea may be given effect to when raised in appeal it is necessary that the facts showing that the suit is barred should be apparent on the record. In the present case, owing to the nature of the defence sat up by the defendant, I find it difficult to hold that the plea of limitation should succeed. It has been found as a fact, and this finding must be accepted in second appeal that no notice of the application under Section 88 of the Estates Partition Act was served on the plaintiffs. This would make the order passed in these proceedings a bad order since the section expressly requires that due notice should be given to the parties before any enquiry is made into facts of possession, But my principal difficulty in this case is that it is impossible to ascertain what was the actual order passed or by whom it was passed, Section 88 provides for an enquiry by a Deputy Collector who would report his conclusion to the Collector and on this report the Collector would dispose of the matter by passing an order. On behalf of the appellant reliance is placed on the plaint. But the plaint is by no means clear. In paragraph 4 of the plaint reference is made to a report made under Section 88 which would appear to be the report under that section by a Deputy Collector. But in the same paragraph it is stated that the Deputy Collector committed an error by deciding that the land in suit appertained to estate as 162. But under Section 88, as already pointed out the decision on the dispute is to be made not by the Deputy Collector but by the Collector. In paragraph 9 reference is made to the date of the judgment of the proceedings. Whether the judgment is the final order by the Collector or the report by the Deputy Collector referred to in paragraph 4 is by no means clear, owing to there being no dispute as to the plaintiff's main contention no copy of the proceedings under Section 88 of the Estates Partition Act was filed in the Court and there is nothing to show what actually happened in these proceedings. Without knowing what the order pasted was it is impossible to say whether or not this suit was maintainable without setting aside the order passed in the partition proceedings or whether the judgment of the 10th November 1917 was the final order in the case from which the period of limitation should commence. Taking this view I hold that the lower Appellate Court was substantially right in holding the plea of limitation could not succeed in appeal.
3. I accordingly dismiss the appeal with costs.