Janah, J.:— This is a Letters Patent appeal arising out of a second appeal. The heirs and legal representatives of the defendant No. 1 are the appellants before us.
2. The plaintiff-respondent instituted a suit for a declaration that C.S Khatian No. 164 of mouza Chalk Baidyabati recording a jama of Rs. 91 in respect of the land and the tank in the names of the defendants as tenants under the plaintiff was erroneous and also for a declaration of the plaintiff's khas dakhali title to the said tank and the land in the aforesaid khatian except 0.27 acres of land on the bank of the tank in plot No. 823 which appertained to the defendants' jama of Rs. 30. The trial court as well as the lower appellate court found in favour of the plaintiff and accordingly decreed the suit. The courts below also found that the garden and the tank in question had come in khas possession of the plaintiff in the year 1322 B.S and since then Ambika Dholey possessed the same as an agent of the plaintiff and after the death of Ambika the defendants had been possessing the same as agents of the plaintiff. It was also found that 0.27 acres of land on the bank of the tank in plot No. 823 appertained to the defendants' jama of Rs. 30. Against the decision of the lower appellate court the appellants filed a second appeal to this Court. The second appeal came up for hearing before Chittatosh Mookerji J. who affirmed the decision of the lower appellate court. Against the decision in the said second appeal the appellants obtained leave under Cl. 15 of the Letters Patent and they have filed the present appeal.
3. Mr. Basu, learned Advocate appearing on behalf of the appellants, has, in the first place, contended that the defendant No. 2 Sudhanya Kumar Dholey died during the pendency of the suit in the trial court but his heirs and legal representatives were not substituted in his place. According to Mr. Basu the entire suit had abated and, therefore, no decree could have been passed in favour of the plaintiff. It appears from the judgment passed in the second appeal that this point was raised for the first time in second appeal before this Court. The appellants did not raise the question of abatement either in the trial Court or in the first appellate court. On the other hand, it appears that after the decree was passed against the defendants although the defendant No. 2 had died before the decree the appellants included the names of the alleged heirs and legal representatives of the defendant No. 2 as respondents Nos. 2 to 7 in the appeal before the first appellate court. By an order dated Feb. 24, 1959 that Court directed the appellants to show cause why the names of the respondents Nos. 2 to 7 should not be expunged, and no cause having been shown, the first appellate court by an order dated 21st March, 1959 expunged the names of the respondents Nos. 2 to 7 from the Memorandum of Appeal. The appellants did not urge before the lower appellate court the question of abatement of the suit on account of the death of the said defendant No. 2. In these circumstances, the trial court or the first appellate court had no occasion to consider the question whether the right to sue did or did not survive against the remaining defendants only. In our view, the learned Judge hearing the second appeal rightly overruled the appellants' objection regarding the abatement of the suit as a whole. A similar question arose for decision in P.M.A.M Vellayan Chetty v. Jothi Mahalinga Iyer, ILR 39 Mad 386 : (AIR 1916 Mad 574) and it was held that under such circumstances the appellants are precluded from taking up such a point for the first time in appeal on the ground that an unsuccessful litigant has no right to argue the case more than once merely on the ground that the other party to the proceedings had died at the time of hearing. The learned Judges pointed out that O. 22, R. 4, Cl. (iii) provided that If the legal representative of the deceased defendant is not brought on the record within the time limited by law the suit shall abate against such defendant, thereby indicating that the suit could proceed against the other parties on the record. After pointing out other instances whether the suit or the appeal could proceed against the parties on record their Lordships observed:
“The object of these various provisions is to ensure that no party shall be prejudiced by hearing in his absence. No rule of law has been quoted to us which enables a party who has had the benefit of full hearing to take advantage of the absence of a party on the record.”
4. In the present case although the defendant No. 2 had died the appellants were given full opportunity of hearing before the trial court as well as before the first appellate court. The appellants did not suffer any prejudice on account of the heirs and legal representatives of the defendant No. 2 not having been brought on record. In Dhurm Das Panday v. Mussammat Shama Sundri Dibiah, (1837-1841) 3 Moo IA 229 (PC), the judicial committee observed:—
“No objection was made in either of those courts that the proper parties were not before the court. If such an objection had been made, it might have been removed, and I think it is a safe maxim for a court of appeal to be governed by that an objection, which, if taken, might have been cured, and which has not been taken in the court below, shall not be taken in the Court of Appeal.”
5. Mr. Banerjee, learned Advocate for the respondent contended that the present suit was instituted by the plaintiff on the allegation that the defendants Nos. 1 and 2 were in possession of the disputed land as agents of the plaintiff and their possession was the possession of the plaintiff. Mr. Banerjee further contended that on the death of the defendant No. 2 the agency in so far as the said defendant is concerned came to an end. It was accordingly contended that there could be no question of substituting the heirs and legal representatives of the deceased defendant No. 2 in this suit, Mr. Banerjee relied upon Section 201 of the Contract Act which provides for the termination of the agency. In the present case on the death of the defendant No. 2 the agency of the said defendant stood terminated. Therefore, there was no necessity for substituting his heirs and legal representatives in the suit. This contention raised on behalf of the respondent has considerable force in it and it must be given effect to. In the facts and circumstances of the present case we are of the opinion that the appellants' objection on this ground was rightly overruled by the learned Judge in the second appeal and we see no reason why the appellants should be allowed to urge this objection in the present appeal.
6. The next point urged by Mr. Basu on behalf of the appellants is that the suit is one under the proviso to Section 111-A of the Bengal Tenancy Act and it is governed by Art 120 of the Limitation Act of 1908. Mr. Basu contended that the record of rights was finally published on the 10th April, 1937. He has produced a copy of the Calcutta Gazette of the year 1937 in which the notification appears at page 945 of Part I showing that the record of rights was finally published on 10th April, 1937. His contention is that the suit having been filed on the 8th Sept., 1954, it is admittedly beyond 6 years, and as such, it is barred by limitation. In support of this contention Mr. Basu relied upon the case of Raja Pra-modo Nath Roy v. Asiruddin Mondal, (1911) 15 Cal WN 896. That was a case where the record of rights recorded the status of the plaintiff as that of a tenure holder. The plaintiff claimed that he was an occupancy rayat, and instituted the suit for such a declaration. It was held that the suit was not one under Section 104-H of the Bengal Tenancy Act but it was under the proviso to Section 111-A of the said Act. It was held that such a suit would be within time if brought within 6 years from the date of final publication of the record of rights. In that case the plaintiff was aggrieved by the erroneous entry in the record of right and his cause of action arose with the final publication of the record of rights. That case, therefore, cannot have any application to the present case, The next decision cited by Mr. Basu is the case of Ashutosh Bhuiyan v. Radhikalal Goswami, ILR 56 Cal 407 : (AIR 1929 Cal 481). The question which arose for decision in that case was whether the suit out of which that appeal arose was one under Section 111-A or 111-B of the Bengal Tenancy Act. It was held that the suit was one under S. 111-B. That decision has no relevance in the present case. The next decision cited by Mr. Basu in support of his contention is Rai Keshab Chandra Banerjee v. Madan Mohan Poddar, (1936) 40 Cal WN 22. There it was held that where a suit is brought by a person for the declaration of any right of his as contemplated by the proviso to Section 111-A of the Bengal Tenancy Act, the suit is within time under Article 120 of the Limitation Act, if brought within six years when his cause of action arose, that is to say, when any injury to his right is threatened. It was further held that such a suit is not barred because as ancillary to the relief as to the injury he also asks for a declaration that the entry in the record of rights is incorrect and the suit is brought beyond six years from the date when the record was finally published. In our view, this decision, instead of supporting Mr. Basu's contention, goes against him, The learned Judge hearing the second appeal did not also permit the appellants to raise the question of limitation for the first time in the second appeal on the ground that In the present case the question of limitation was a mixed question of fact and law and not a pure question of law. In Banarsi Das v. Kanshi Ram, AIR 1963 SC 1165, it has been pointed out that a new plea of limitation which is not purely on a question of law but on a mixed question of fact and law should not be allowed to be raised for the first time in a second appeal. Moreover, the present suit cannot be said to be one under the proviso to Section 111-A of the Bengal Tenancy Act. The plaintiff was not bound to bring a suit for a declaration that the entry in the record of rights was erroneous unless and until there was an invasion of his right. Cause of action to institute a suit did not arise merely because there was an erroneous entry. This view finds support from the decisions in Rai Kiron Chandra Roy Bahadur v. Tarak Nath Gangopadhyay, 40 Cal WN 566: (AIR 1936 Cal 456); Gannan Dunkerley and Co. Ltd. v. Union of India, (1969) 3 SCC 607 : AIR 1970 SC 1433 and Bolo v. Koklan, 57 Ind App 325: (AIR 1930 PC 270). In our view the learned Judge rightly disallowed the plea of limitation to be raised on behalf of the appellants in the Second Appeal.
7. The last contention put forward by Mr. Basu has been that the suit is barred under the proviso to Section 42 of the Specific Relief Act, 1877. It has been argued that the plaintiff having brought the suit for a mere declaration without a prayer for any consequential relief, the suit was not maintainable. According to Mr. Basu the plaintiff ought to have prayed for recovery of possession, inasmuch as, it is the admitted case of the plaintiff that the defendants are in possession. In the present case the plaintiff asked for a declaration that C.S Khatian No. 164 recording the jama of Rs. 91 in the names of the defendants under the plaintiff was erroneous. The plaintiff further prayed for a declaration of his khas dakhali title to the tank and the land in khatian No. 164 excepting 0.27 acres of land thereof. The plaintiff's case is that the defendants are in possession as agents, for and on behalf of the plaintiff. That being so, it was not necessary for the plaintiff to ask for any further relief. The plaintiff would not have asked for recovery of possession because the plaintiff was in possession through the defendants who were alleged to be his agents. Further relief is to be prayed for only in cases where the decree would otherwise become infructuous. If there is no necessity, further relief need not be asked for. In Vemareddy Ramoraghava Reddy v. Konduru Seshu Reddy, AIR 1967 SC 436, it has been pointed out that Section 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have powers to grant such a decree independently of the requirements of the section. Whether further relief apart from the declaration should be asked for or not depends upon the allegations with which the plaintiff comes to Court. In the present case upon the allegations made in the plaint we are of the opinion that the plaintiff was not required to pray for any further relief. Indeed, it appears from the Ext. 3 series which are some of the letters written by Kanai Lal Dholey. the defendant No. 1 himself, that the defendants admitted the plaintiff's title and possession and that they were managing the property for and on behalf of the plaintiff. In Exts. 3(3) 14 which is a letter dated 19th Sept., 1954 the defendant No. 1 is assuring the plaintiff that everything is being done by the defendant to protect the interest of the plaintiff and the plaintiff has nothing to worry about. In another letter dated 18th Bhadra, Ext. 3(3) 15 the defendant No. 1 is informing the plaintiff that the intermediary interest has been abolished under the West Bengal Estates Acquisition Act and he is asking for certain papers to take steps on behalf of the plaintiff under the said Act for filing returns etc. It appears that some of the letters have been written even after the institution of the suit. On these facts we do not see how it can be said that the plaintiff ought to have asked for recovery of possession. Mr. Basu has relied upon a number of decisions in support of his contention. The said decisions are reported in 42 Cal WN 930: (AIR 1938 PC 73), Sundar Singh Mallasingh v. Managing Committee, Sundarsingh Mallasingh Rajput High School; AIR 1942 Cal 245, Anila Bala Devi v. Madhabendu Narayan Roy; AIR 1974 Cal 342, Kumud Ranjan Banerjee… v. Manabendra Banerjee…Opposite Party.. It is not however necessary for us to consider these cases in detail because these cases are different on facts. On this aspect of the matter Chittatosh Mookherji J. took the view that even if this contention of the appellants were accepted his Lordship would have remanded the matter to give the plaintiff an opportunity to amend his plaint. The view taken by Chittatosh Mookherji J. appears to us to be in consonance with justice. Mr. Basu relied on two decisions reported in (1902) ILR 25 Mad 504, Surya Narayanamurti v. Tammanna and ILR 55 Cal 590 : (AIR 1928 Cal 425), Sadhu Kathalia v. Dhirendra Nath Roy and contended that where in spite of objection being taken by the defendant the plaintiff does not amend his plaint, he should not be given any further opportunity to amend the plaint at the appellate stage.
8. In the present case the plaintiff had no occasion to amend his plaint because he had been successful throughout the litigation, and the defendant's plea that the suit is barred by Section 42 of the Specific Relief Act has been overruled throughout.
9. For the reasons mentioned above, this appeal fails and it is accordingly dismissed with costs.
10. R. Bhattacharya, J.:— I agree.
11. Appeal dismissed.