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Case Number

Appeals from Original Decrees, Nos. 44 and 68 of 1930, against the decrees of Surendranath Ray, Second Additional Sub-ordinate Judge of Dacca

Judges

Derbyshire, C.J
Mukerji, J.

Acts

section 111 A of the Bengal Tenancy Act;
SECTION 42 SPECIFIC RELIEF ACT
Article 120 of the Limitation Act
SPECIFIC RELIEF ACT

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Smart Summary

Judgment Summary — Mukerji, J.

Factual and Procedural Background

The suit arose from disputed entries in the record-of-rights for tâluk No. 1116 of the Dacca Collectorate. The plaintiffs, the principal defendants and pro forma defendants were said to be joint owners: the plaintiffs and pro forma defendants holding an aggregate 8 annas share and the principal defendants the other 8 annas. The record recorded interests described as a debattar, a brahmottar and a shikmi under the whole 16 annas. The plaintiffs (who owned 5 annas 12 gandâs of the tâluk) alleged those interests did not in fact exist, and at any rate did not attach to the 8 annas share belonging to themselves and the pro forma defendants.

The plaintiffs sought, among other reliefs, (a) a declaration that the record was incorrect insofar as it recorded the said interests as under the plaintiffs' 8 annas share and that the plaintiffs' 8 annas share was free from those interests; and (b) an injunction restraining the principal defendants from claiming such interests.

The principal defendants denied any wrong entry, pleaded limitation and raised an objection on maintainability. The Sub-ordinate Judge found there was no debattar, brahmottar or shikmi under the plaintiffs' 8 annas share (though such rights existed under the principal defendants' 8 annas). That factual finding was not disputed on appeal. However, the Sub-ordinate Judge dismissed the suit on the ground of limitation, holding that the suit fell within the proviso to section 111A of the Bengal Tenancy Act and that Article 120 of the Limitation Act (six years from final publication of the record-of-rights) applied. The plaintiffs appealed in two batches.

Legal Issues Presented

Whether a suit challenging an entry in the record-of-rights that seeks a declaration under the proviso to section 111A of the Bengal Tenancy Act is governed by Article 120 of the Limitation Act so that limitation runs from the date of final publication of the record-of-rights.
Whether, where an entry in the record-of-rights gives rise to a later distinct injury or a claim (for example in partition proceedings), a plaintiff may institute suit within six years of that later injury (i.e., when his title is put in jeopardy) rather than within six years of final publication.

Arguments of the Parties

Plaintiffs (Appellants)

The record-of-rights wrongly recorded debattar, brahmottar and shikmi as interests under the plaintiffs' 8 annas share, and the plaintiffs sought a declaration and an injunction to prevent the defendants from claiming those interests.
Implicitly, and as recorded by the court, the plaintiffs relied on being within time having instituted suit within six years of the date when their title was placed in jeopardy (i.e., when those entries were used to make a claim in partition proceedings).

Principal Defendants (Respondents)

Denied that the entries in the record-of-rights were wrong.
Pleaded limitation — contending that the suit was a declaratory challenge to the record and so fell under the proviso to section 111A and Article 120 of the Limitation Act; therefore the suit was barred as not brought within six years of final publication.
Raised an objection as to the maintainability of the suit under the statutory scheme.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rajani Nath Pramanik v. Monaram Mandal	That where the plaintiff makes the entry itself his cause of action, the suit must be brought within six years from final publication of the record-of-rights (Article 120 of the Limitation Act).	The Sub-ordinate Judge relied on this case; the High Court distinguished it on the ground that in that case the plaintiff had relied solely on the entry itself and did not allege disturbance or threat to possession.
Shebait Birendra Nath Roy v. Surendra Nath Tagore	Observed that so long as an entry does not injure the plaintiff he need not sue; the plaintiff is not out of time if he sues within six years of the injury caused by the entry.	The court noted the observation and said that because the law and authorities were not discussed in that case, the point warranted fuller consideration.
Nasarulla Mia v. Amiruddi	Explains the first part of section 111A: it prohibits suits that take undue advantage of mere technical defects in settlement procedure and seeks finality in rent fixation; also refers to the evidentiary status of the record-of-rights.	Used to frame the statutory context: the record-of-rights entry is presumptive evidence and does not itself create or extinguish rights, so the effect of failure to sue under the proviso is to leave the entry as presumptive evidence.
Ramgulam Singh v. Bishnu Pargash Narain Singh	The proviso to section 111A contemplates a declaration under the Specific Relief Act; a suit for declaration may be instituted within six years of the date when the cause of action arose.	The court relied on the decision to explain the nature of suits under the proviso and to show that a declaration suit must be within six years of the cause of action if the cause is the entry itself.
Agin Bindh Upadhya v. Mohan Bikram Shah	Authority that a party is not obliged to bring a suit simply to avoid a presumption; if the entry itself is the cause of action then the six years' rule applies.	Referenced to support the proposition that where entry is the cause of action the limitation period runs from publication.
Seopher v. Deo Narain	Held that unless an actual claim was made upon the entry in the record-of-rights, time did not run against a plaintiff seeking correction of the entry.	Referred to for the principle that an adverse entry is not a starting point for limitation until used to make a claim.
Dina Nath Das v. Rama Nath Das	When a declaration is accompanied by a prayer for confirmation of possession and an injunction (consequential reliefs), Article 120 does not necessarily apply; the suit may be within six years of the consequential injury.	Used to show that consequential reliefs can mean limitation runs from the date of the injury caused by the entry rather than the date of publication.
Soroj Kumar Acharji Chowdhuri v. Umed Ali Howladar	Entry in record-of-rights raises a presumption of correctness and is not a starting point for computation of limitation; remedy accrues when attempt to dispossess occurs.	Illustrated the position that rights to sue may accrue on attempted dispossession rather than on publication of entry.
Profulla Chandra Basu v. Kshetra Lal Sinha Roy	Where correction of record-of-rights is incidental and the plaintiff seeks injunction against execution of a decree obtained on the basis of the wrong entry, the plaintiff may be within time if suit is within six years of the consequential action (e.g., suit for rent).	Applied to support the proposition that consequential reliefs tied to later events can give rise to a fresh cause of action within six years.
Prodyat Kumar Tagore v. Bal Gobinda Ditchit	Held that where the sole cause of action is the entry itself, the plaintiff must sue within six years of the entry's publication.	Reinforced the principle that if entry is the only cause of action limitation runs from publication.
Asutosh Bhuiyan v. Radhika Lal Goswami	Entry casts a cloud on title and thus affords a cause of action for a declaration, but the plaintiff is not compelled to dispel the cloud immediately; he may contest later when a fresh cause of action arises.	Used to clarify that the existence of an adverse entry does not necessarily force immediate action, so later suits may still be timely if based on a later prejudicial act.
Brij Behari Singh v. Sheo Sankar (Patna High Court)	States the governing principle that if a suit is substantially a declaratory suit as contemplated by the proviso to section 111A then limitation runs from publication and a plaintiff cannot escape the six years' rule by adding a confirmation-of-possession prayer.	Referred to as enunciating the stricter view that challenges substantially to the record-of-rights require suit within six years of publication.
Amiruddin v. Saidur Rahman	Held that where a suit is substantially a declaratory challenge to the record-of-rights, adding a prayer for confirmation of possession does not allow the plaintiff to escape the six years' rule; limitation runs from publication.	Cited for the stricter approach that limitation runs from the date of publication where the declaration substantially challenges the record.
Ramji Ram v. Sadhu Saran Lal	Did not affirm the strict view of Amiruddin; laid down that where there is a definite challenge by an entry and the plaintiff must have been aware of it, suit must be brought within six years of that challenge; but if plaintiff retains possession he may sue within six years of any new challenge which prejudices his rights.	Adopted to support the proposition that a fresh prejudicial act (a new challenge) may start the limitation period afresh.
Kali Prasad Misir v. Harbans Misir; Aftab Ali Khan v. Akbar Ali Khan	Authorities (not under Bengal Tenancy Act) where entries in settlement papers had similar probative value and courts allowed suits within six years of when the plaintiff was put in jeopardy on the strength of the entry.	Invoked to show consistent holdings that limitation can run from a later event that places the plaintiff's title in jeopardy.
Legge v. Rambaran Singh	Cited alongside Ramgulam Singh in relation to the view that an entry in the record-of-rights does not create or extinguish rights but is rebuttable evidence.	Used to reinforce the evidentiary, not constitutive, character of entries in the record-of-rights.

Court's Reasoning and Analysis

The court began with statutory interpretation of section 111A of the Bengal Tenancy Act. The substantive part of section 111A prohibits suits in respect of orders directing the preparation or attestation of record-of-rights (and related rent fixation subject to other provisions), while the proviso allows a person dissatisfied with any entry in or omission from a record-of-rights, which concerns a right of which he is in possession, to institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.

The court emphasized the evidentiary nature of an entry in the record-of-rights: an entry neither creates nor takes away rights but is made on the basis of possession and carries a statutory presumption of correctness (section 103B(5)). The practical effect of failing to sue under the proviso is that the entry remains, and the presumption of correctness attaches to it.

From principle and the wording of the statute the court reasoned that a plaintiff is not compelled to sue merely to avoid the presumption of correctness; he may wait until the entry is actually relied upon so as to cause him injury (for example, when the entry is used as the basis of a claim in partition proceedings or to obtain a decree). If a plaintiff sues to avert or remedy such an injury and does so within six years of that injury, the suit framed as a declaration against the correctness of the entry but primarily directed to remedying the injury is maintainable and not time-barred as a pure declaratory suit under Article 120.

The court then reviewed authorities. It distinguished cases where the plaintiff made the entry itself his sole cause of action and therefore had to sue within six years of final publication (e.g., Rajani Nath Pramanik v. Monaram Mandal; Prodyat Kumar Tagore v. Bal Gobinda Ditchit). It contrasted those with decisions holding that time runs from actual injury or when a claim is made on the strength of the entry (e.g., Seopher v. Deo Narain; Soroj Kumar Acharji Chowdhuri v. Umed Ali Howladar; Dina Nath Das v. Rama Nath Das; Profulla Chandra Basu v. Kshetra Lal Sinha Roy), and with authorities recognizing that a fresh cause of action may arise when the plaintiff's possession is challenged or his title is put in jeopardy (e.g., rulings cited from the Allahabad High Court and Ramji Ram v. Sadhu Saran Lal).

Applying these principles to the present case, the court observed that the plaintiffs' prayer for an injunction was a consequential relief arising from the defendants' claim in the partition proceedings based on the adverse entry. The suit had been instituted within six years of that consequential cause of action (the claim on the strength of the entry which put the plaintiffs' title in jeopardy). Thus the suit was not a pure declaratory suit relying solely upon the entry as the cause of action and was therefore not barred by Article 120 as interpreted to apply only where the entry itself is the cause of action.

Holding and Implications

Core Ruling: APPEAL ALLOWED; DECREE OF THE COURT BELOW REVERSED; DECREE ENTERED IN FAVOUR OF THE PLAINTIFFS GIVING THE DECLARATION AND THE INJUNCTION.

Consequences explicitly ordered by the court:

The appeal was allowed and the decree of the Sub-ordinate Judge (dismissing the suit as barred by limitation) was set aside.
A decree was entered in favour of the plaintiffs granting the declaration that the plaintiffs' 8 annas share was free from the debattar, brahmottar and shikmi interests (as prayed) and an injunction restraining the principal defendants from claiming those interests.
The plaintiffs were awarded their costs of the suit and of the appeal against the contesting defendants.
The hearing-fee in the High Court was assessed at ten gold mohurs in each appeal.

The opinion did not announce or state that it was establishing a new rule of general application beyond applying settled distinctions in precedent. Its practical effect is the reversal of the lower court's dismissal on limitation grounds and the entry of reliefs for the plaintiffs in this case.

Disposition: Appeal allowed; decree reversed; plaintiffs' declaration and injunction granted; costs and hearing-fees awarded as stated. (Derbyshire, C.J. concurred.)

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Ahmad Hosain Bepari v. Digindranarayan Singha Ray

Mukerji, J.:— These appeals have arisen out of a suit which was commenced on the following allegations:—

That the lands of tâluk No. 1116 of the Dacca Collectorate are owned and possessed jointly by the plaintiffs, the principal defendants and the pro forma defendants, the plaintiffs and the pro forma defendants having an 8 annas share and the principal defendants the remaining 8 annas share; that a debattar, a brahmottar and a shikmi have been wrongly recorded as interests held under the 16 annas of the tâluk; and that, in a partition pending before the Collectorate, the said interests were being treated as such. The plaintiffs, as owners of a 5 annas 12 gandâs share in the tâluk, alleged that the said interests had no existence in fact, and that at least none of them were held under the 8 annas share belonging to themselves and to the pro forma defendants. The reliefs asked for were several; but for the purposes of this appeal they may be taken to have the following:— (a) A declaration that the record, in so far as it mentioned the said interests as under the 8 annas share of the plaintiffs and of the pro forma defendants, was wrong, and that the said 8 annas share was free from those interests; and (b) an injunction restraining the principal defendants from claiming such interests.

The defence of the principal defendants was a denial that there was anything wrong in the record that had been made of the said interests, a plea of limitation, and an objection as regards the maintainability of the suit. The last two matters go together. The Sub-ordinate Judge has found—

There is no debattar, brahmottar or shikmi right under the 8 annas share of the plaintiffs and the pro forma defendants, though there are such rights under the 8 annas share of the principal defendants.

This finding, it should be stated, has not been disputed before us. The learned-judge, however, has dismissed the suit on the ground of limitation. The two appeals have been preferred by the plaintiffs in two batches.

The learned-judge has held that the suit is for a declaration that the plaintiffs' right has not been correctly recorded and so is a suit within the proviso to section 111 A of the Bengal Tenancy Act; that the other prayers in the plaint did not convert the suit into one of any other nature; and that as the suit, to which Article 120 of the Limitation Act applied, was not instituted within six years of the final publication of the record-of-rights, it was barred. He overruled the contention that the plaintiffs were entitled to come within six years of the date when their title was in jeopardy. For the view of limitation that he took, he relied on the case of Rajani Nath Paramanik v. Monaram Mandal.

In the case of Shebait Birendra Nath Roy v. Surendra Nath Tagore, it has been observed that so long as the entry does not injure the plaintiff he need not come to court at all, and that, therefore, a plaintiff is not out of time if he institutes the suit within six years of the injury which the entry creates and which is his cause of action. As the law and the authorities bearing on it were not discussed in that case, and as the Sub-ordinate Judge has taken a contrary view, it is necessary to consider the matter further.

Under the substantive part of section 111A, no suit in respect of the order directing the preparation of record-of-rights or attestation of such record or any part of it lies in the civil court; not does a suit lie in the civil court in respect of rent settled under sections a 104A to 104F., except a suit provided for in section 104H. The proviso contained in section 111A says that a person dissatisfied with any entry in or omission from a record-of-rights, which concerns a right of which he is in possession, may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.

As explained in the case of Nasarulla Mia v. Amiruddi, the first part of section 111A prohibits suits which seek to take undue advantage of mere technical defects in the procedure leading up to or involved in settlement proceedings; and it further prohibits the alteration of rent once settled except to the extent allowed by section 104H, the object of which prohibition is to safeguard the Government revenue and to attach reasonable finality to the fixation of assets upon which the Government revenue is based. Section 104J makes it clear that, subject to the provisions of section 104H, the rent settled shall be deemed to have been correctly settled and to be fair and equitable. But the question is, what is the effect of an omission to institute a suit under the proviso to section 111A as regards a right which has been entered in or omitted from the record-of-rights. Plainly, the only effect is that the entry in the record-of-rights as finally published remains and “shall be presumed to be correct until it is proved by evidence to be incorrect” [Section 103B, sub-section (5)]. The entry in the record-of-rights neither creates nor takes away any rights: having been made on the basis of possession, it remains as a piece of evidence with an evidentiary value, namely, with a presumption of correctness attaching to it. It is not absolutely incumbent on and indeed it is often unnecessary for a party to avoid the effect of the presumption: a party affected by the presumption can come to court as and when he finds some injury actually arising from it. And so long as he frames his suit to avert or remedy the injury and is in time for that purpose, the fact that he seeks for a declaration as regards the incorrectness of the entry, but only as ancillary to the relief as to injury that he asks for, it is not possible to see how or why his suit should not be held to be in order. On the words of the statute and on principle, no other view is indeed possible.

Now, let us see what is the state of authorities on the point. In the case of Ramgulam Singh v. Bishnu Pargash Narain Singh, the learned-judges explained the nature of the suit which the proviso to section 111 A contemplates, and observed as follows:—

The proviso to section 111A of the Act speaks of the possibility of a suit by a person who is affected by an entry in the record-of-rights for a declaration under the Specific Relief Act; and a suit for a declaration, as is contemplated by section 42 of the Specific Relief Act, may be instituted within six years of the date when the cause of action arose. We are of opinion that it was not necessary for the plaintiff to bring a suit to set aside an entry in the record-of-rights.

In this decision as well as in a previous decision, Agin Bindh Upadhya v. Mohan Bikram Shah, to both of which Mitra, J. was a party, the learned-judge very clearly pointed out that it was not necessary for a party to bring a suit for avoiding a presumption, but if his cause of action is the entry itself and he wants to have the entry corrected he must come within six years of that cause of action. In Seopher v. Deo Narain it was held that unless an actual claim was made upon the entry in the record-of-rights time did not run against a plaintiff who seeks to have a declaration against the correctness of the entry. In Dina Nath Das v. Rama Nath Das, along with a prayer for declaration, there was a prayer for confirmation of possession and for an injunction; it was held that the prayer for injunction was a prayer for a consequential relief and so the suit was not a declaratory suit to which Article 120 of the Limitation Act applied. It was further pointed out that entries in a record-of-rights adverse to the plaintiff do not by themselves affect his possession though they may be used in evidence against him in a suit for a declaration of title, and that time does not run against him until an actual claim is made on the strength of the entry in the record-of-rights. In Soroj Kumar Acharji Chowdhuri v. Umed Ali Howladar, it was observed that an entry in the record-of-right merely raises a presumption of correctness and is not a starting point for the computation of the period of limitation. In that case a suit for declaration of title and confirmation of possession was brought more than six years from the date of final publication of the record-of-rights but within six years from the date of the attempted dispossession; and it was held that the right to sue accrued on the latter date and the suit was not barred. In the case of Profulla Chandra Basu v. Kshetra Lal Sinha Roy, the plaintiffs had not asked for correction of record-of-rights, but had incidentally asked for a declaration that the entry therein was incorrect and had also sought for an injunction restraining the defendant from executing a rent decree which the latter had obtained on the basis of the wrong entry; and it was held that the plaintiff was within time, having come within six years of the institution of the suit for rent.

Let us now turn to some of the decisions of this Court in which suits instituted more than six years after the final publication were considered time-barred. The case of Rajani Nath Pramanik v. Monaram Mandal, upon which the Sub-ordinate Judge has relied, is only an authority for the proposition that if the plaintiff sues for a declaration that the entry is wrong and makes the entry itself his cause of action, he must institute his suit within six years from the final publication and not from the date of the signing of the certificate of such publication. It should be noticed that in that case the plaintiff did not rely on any other cause of action and did not allege that his possession had in any way been disturbed or threatened to be disturbed by the, defendant and yet added a prayer for confirmation of possession; and as the learned-judges pointed out,

The only cause of action alleged in the plaint was the alleged wrong entry in the record-of-rights.

The same was held in the case of Prodyat Kumar Tagore v. Bal Gobinda Ditchit, the state of facts being similar. So also in other cases, where the cause of action was the entry itself and nothing else, it has being consistently held that the plaintiff must come within six years of the entry [e.g, Asutosh Bhuiyan v. Radhika Lal Goswami*]. It should be noted that in the last of these two cases, while it was said that the entry, by reason of the presumption as to its correctness, casts a cloud on the title, meaning thereby that it thus affords a cause of action for a declaration, it was not suggested that the plaintiff was bound to come to dispel the cloud, or, in other words, that if he did not then come for that purpose he would be precluded from challenging the entry in future.

In the Patna High Court, the principle governing suits of this nature was enunciated in Brij Behari Singh v. Sheo Sankar Jha, in these words:—

This was the view taken in Amiruddin v. Saidur Rahman, where it was held that if a suit is substantially such a declaratory suit as is contemplated in the proviso of section 111A, Bengal Tenancy Act, then the plaintiff cannot, by adding a prayer for confirmation of possession, escape the six years' rule. The point from which limitation is to run is the date of the publication of the adverse entry in the record-of-rights. Ramgulam Singh v. Bishnu Pargash Narain Singh, Legge v. Rambaran Singh.

And in the said case it was also clearly pointed out that an entry in the record-of-rights neither creates nor extinguishes rights, but that it is merely a rebuttable piece of evidence.

In a later case of the same Court, Ramji Ram v. Sadhu Saran Lal, the learned-judges were not prepared to affirm the view propounded in the case of Amiruddin v. Saidur Rahman, that if the declaration sought for substantially challenged the record-of-rights, the suit for such a declaration must be instituted within six years of the final publication of the record-of-rights; and laid down the principle in the following terms:—

Where there is a definite challenge to the plaintiff's rights by an entry made in the record-of-rights and where the fact is patent that the plaintiff must have been aware of that challenge to his rights, the suit, if brought upon that challenge, must be brought in accordance with the six years' rule of limitation. If in spite of the challenge the plaintiff retains possession of the property, he is not required to institute any suit upon that challenge but may institute a suit at any time within six years of any new challenge which has the effect of prejudicing his rights.

There are numerous cases, not under the Bengal Tenancy Act, in which entries in settlement papers, having similar probative value, were alleged to be wrong, and reliefs were asked for on that footing; and it has been consistently held by the Allahabad High Court that, independently of the cause of action which arises upon the entry itself, a fresh cause of action, justifying a prayer for a declaration and for other appropriate reliefs, may arise when on the strength of the entry the plaintiff is put in jeopardy. Kali Prasad Misir v. Harbans Misir, Aftab Ali Khan v. Akbar Ali Khan; and the authorities referred to in these cases.

The prayer for injunction, which was there in the present case, was, in fact, a prayer for a consequential relief, which arose out of the claim in the partition proceedings which the defendants put forward on the basis of the entry. So long as the suit was, as it was, instituted within six years of that cause of action, the suit was not barred.

The appeal, therefore, should be allowed; and the decree of the court below being set aside, a decree should be entered giving the plaintiff the declaration and the injunction set out in the beginning of this judgment. The plaintiffs will also be entitled to their costs of the suit and of the appeal as against the contesting defendants. We assess the hearing-fee in this Court at ten gold mohurs in each appeal.

Derbyshire, C.J:— I agree.

Appeal allowed.

Decree reversed.

A.A

Ahmad Hosain Bepari v. Digindranarayan Singha Ray

Judgment Summary — Mukerji, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs (Appellants)

Principal Defendants (Respondents)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ahmad Hosain Bepari v. Digindranarayan Singha Ray

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