At the cadastral survey under Chap. X of the Bengal Tenancy Act of Mouzah Saidpur Kakuria the Defendants were recorded to be raiyats paying rent at a uniform rate of Rs. 180-12-8. The Plaintiff, who is the proprietor of three-fourths of the village, made an objection under sec. 103 of the Bengal Tenancy Act. On the 8th August 1900 the objection was decided in favour of the Defendants. The record was finally published under sec. 103-A(3) on the 24th November 1900.
The present suit was instituted on the 1st March 1902, for a declaration that the Defendants are kashikars with rights of occupancy and that the rental is Rs. 353-4-3. The suit was contested by the Defendants who claimed to be raiyats paying rent at a uniform rate from the time of the Permanent Settlement at the rate of Rs. 180-12-8 and various other pleas were raised, of which it is necessary to mention only the plea of limitation.
The Subordinate Judge in whose Court the suit was instituted came to the conclusion that the Defendants were occupancy raiyats holding 130 bighas, 13 cottahs and 10 dhurs of land paying a juma of Rs. 353-4-3 or Rs. 264-15-2 for Plaintiff's ¾ths share. The learned District Judge, on appeal, has affirmed the decision of the first Court.
The appeal before us has been presented by the Defendants, and the first point argued before us relates to the plea of limitation. It does not appear from the judgment of the District Judge that the plea of limitation was discussed before him. But assuming that it was raised, or that it is competent for the Defendants to raise the plea before us without having raised it in the Court below, we do not think that the plea is maintainable. The plea is based on Art. 14 of the second schedule of the Limitation Act, which lays down that a suit to set aside an order of a Government officer should be instituted within one year from the date of the order. The order of the Settlement Officer under sec. 103-A is the decision of an objection and not decision of a dispute within the meaning of sec. 106 of the Act. The decision of an objection has no finality. On publication of the Records of Rights under sec. 103-A, sub-sec. (3), a person, dissatisfied with an entry, may institute a suit within two months under sec. 106 of the Act. The decision of an objection, therefore, cannot be said to be an order of a Government officer within the meaning of Art. 14 of the second schedule of the Limitation Act. It has none of the characters of finality in any way. The period of limitation cannot, therefore, be counted from the 8th August 1900, the date of the decision of the objection under sec. 103-A.
It has, however, been contended that the period should be counted from the date of the publication of the Record of Rights. Sec. 103-B prescribes that an entry in the Record of Rights raises a presumption of the correctness of the entry. It cannot be said that it is necessary, in any case, to bring a suit to avoid a presumption, and we do not think that Art. 14 of the second schedule of the Limitation Act is intended to cover a suit for avoiding the presumption which may be raised by the provision of any law we do not also think that a suit may be brought to set aside an entry, assuming that each entry in a Record of Rights is an order of a Government officer.
The proviso to sec. 111-A 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 declaration, as is contemplated by sec. 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 the entry in the Record of Rights. He might bring a suit for a declaration that the entry contains erroneous statements. The suit is, in fact, not either in form or substance a suit to set aside an entry. It is, as contemplated by the proviso to sec. 111-A, a suit for a declaration, the Plaintiff having expressly asked for a detemination of the true right of the Defendants, i.e, that they are kasktkats paying an annual juma of Rs. 353-4-3 p. This is precisely the view which one member of this Bench sitting with Pratt, J., took in the case of Agin Bindh Upadhya v. Mohan Bikramshah.
Our attention has been drawn to the case of Ashutose Nath v. Abdool, in which the learned Judges who decided it were of opinion that a suit for a declaration that an entry in the Record of Rights is erroneous should be instituted either within one year or six years. It was not necessary for the learned Judges in that case to decide, the suit having been instituted after six years, whether Art. 14 of the second schedule of the Limitation Act or Art. 120 applied to the case. In fact the learned Judges left the matter open, while in Agin Bindh v. Mohan Bikramshah this Court expressly held in a case almost of the present character that the period of limitation prescribed by Art. 14 of the second schedule of the Act was not applicable.
The plea of limitation, therefore, fails.
A question has been raised as regards the effect of the decrees referred to in the judgments of the lower Courts, namely, the decrees of 1846 and 1861. It is true that a copy of the decree of 1846 was not put in as evidence, but the recital of its purport in the subsequent decree of 1861 has the same practical effect, and even without the decree of 1846, the decree of 1861 is sufficient to show the rate of rent was Rs. 353-4-3 p. as claimed by the Plaintiff.
It has next been contended before us that the solenamah of 1892 shows that the rental was as claimed by the Defendants. Both the lower Courts have dealt with the sohnamah and they are of opinion that the Plaintiff in the present suit does not claim under the Plaintiff in the suit which resulted in the solenamah. Whether the present Plaintiff the legal representative or assignee of the Plaintiff in the previous suit is a question of fact and we are not satisfied that the decision of the lower Courts on this point is wrong.
The appeal fails and we dismiss it with costs.
Appeal dismissed.