Ramji Ram v. Sadhu Saran Lal

1. In this case there was a Record of Rights prepared in the year 1899. In that Record of Rights the respondent was not shown as having any interest at all in the land in suit, the appellant was shown to be the lakhirajdar thereof. The appellant, therefore, brought this suit against the plaintiff for a declaration that the respondent's title was not that of lakhirajdar but that of a mortgagee and that the equity of redemption vested in the plaintiff. The Courts below have found as a fact that the appellants are merely mortgagees by virtue of a patowa patta dated 1890 and that the plaintiffs-respondent is the owner of the equity of redemption by virtue of an auction-purchase of 1894. They have, therefore, decreed the plaintiff's suit and given him a declaration of his title and of the defendants' title, thereby recording a decision that the entry contained in the Record of Rights is incorrect. Against this decision an appeal is laid on two grounds: Firstly, that under Section 42 of the Specific Relief Act, the plaintiff's suit is barred by reason of the fact that he could and should have brought a suit for redemption of the mortgage. Secondly, because the first challenge to the plaintiff's title being made in S. 103 proceedings prior to the final publication of the Record of Eights, the suit is barred by the six years rule of limitation under S. 120. We are not prepared to go quited as far as our learned brother Mullick, J. in Amiruddin v. Saidur Rahman(1), but it is clear that where there is a definite challenge to the plaintiff's rights by an entry made in the Record of Eights 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.

2. 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. In the case before us it is alleged that there was a new challenge in the year 1911. It is not suggested that new challenge has in any way placed the plaintiff in a position worse than that which he occupied between the date of the finally published Record of Rights and the year 1911.

3. That the plaintiff was fully aware of the challenge to his rights contained in the Record of Rights is patent from the fact that he was a party to the proceedings under S. 103 upon which the preparation of the record was based. We must, therefore, hold that this suit is barred by limitation. The appeal must be decreed with costs and the suit dismissed with costs, without prejudice to any suit which the plaintiff may now bring for the redemption of the property by payment of the sum due to the mortgagee.

V.S/R.K

4. Appeal allowed.