JAGGANNATH PRASHAD Vs. BHANWARLAL
LAWS(RAJ)-1967-10-4
HIGH COURT OF RAJASTHAN
Decided on October 30,1967

JAGGANNATH PRASHAD Appellant
VERSUS
BHANWARLAL Respondents

JUDGEMENT

- (1.) THIS second appeal against the order of the Revenue Appellate Authority, Kota dated 5th of November, 1962 has arisen out of the following circumstances. Bhanwarlal, who is respondent before us, filed a suit on the 24th of June, 1957 in the Court of the Assistant Collector, Kota, alleging that he was the khatedar of field No. 461 measuring 5 bighas located in Mandi Sumerganj. 7 years ago, Maharaja of Indragarh resumed the land, gave it to the appellant-defendant Jaggannath for putting up a garden. He filed a suit on the 31st of July, 1953 in the Court of the Sub Divisional Officer, Kota seeking declaration of his right as a khatedar on this land. The suit was decreed on the 7th of December, 1956 and by means of a mutation dated 21st of May, 1957 his name was entered as Khatedar on the land, in dispute. The plaintiff-respondent was holding this land as a khatedar. The appellant did not put any garden. He prayed that the possession of the appellant-defendant should be removed and he be put in possession. The case for the defendant-appellant was that Maharaja of Indragarh exercised sovereign powers in revenue matters and his orders, therefore, could not be challenged. It was in exercise of his sovereign rights that the land in the Khata of the respondent-plaintiff was taken away and entrusted to the appellant. The appellant had been in cultivatory possession of this land as a khatedar since it was given to him by Maharaja Indragarh. No revenue Court has any jurisdiction to interfere with that order. The order of the Sub-Divisional Officer conferring khatedari rights on the respondent-plaintiff was without jurisdiction and was not binding on him.
(2.) ON the basis of these pleadings, the trial court after framing five issues, including that of relief, dismissed the suit mainly on the ground that there was no force in this suit under 177 of the Rajasthan Tenancy Act, as the appellant had not broken any condition of putting tress on the land in dispute. An appeal was filed by the respondent against this order in the Court of the Revenue Appellate Authority and the Revenue Appellate Authority by a laconic judgment, held that when the Commissioner had decided that the respondent became the khatedar, the proceedings of Maharaja Indragarh were unlawful and when the allotment of land the appellant had been held as unlawful, the appellant was a trespasser, this order that the appellant-defendant has come in second appeal involved, in under sec possession llant was in favour of It is against before us. We have heard counsel for the parties and have also gone through the record. So far as the judgments of the courts below are concerned, we have no hesitation in observing that the trial court has failed to come to grips with the question as much as even though the heading of the plaint had mentioned 177 of the Rajasthan Tenancy Act, yet the relief asked for, was that of The trial court has not discussed whether the possession of the appe-lawful or unlawful. The judgment of the appellate court also is too laconic to be called a proper judgment conforming to the provisions of Order 41 Rule 31 of the C. P. C. He has advanced tendentious arguments and assumed without any reason that the allotment to the appellant was without lawful authority, questions of limitation and other questions raised which the learned Revenue Appellate Authority has not cared to discuss. We have heard the arguments advanced on both sides at great length. The learned counsel for the appellant attacked the order of the learned Revenue Appellate Authority on three grounds. In the first place he contended that the respondent was dispossessed by Maharaja Indragarh who exercised sovereign powers and who was admittedly the land holder in 1945. At that time, it is not understood under what law the action of the land holder could be challenged. What protection was afforded to the tenant or what was the remedy at that time? The action of Maharaja Indragarh as sovereign power in the revenue matters cannot be challenged. So far as this argument is concerned, we think that the judgment of the Sub Divisional Officer dated 7th of Dec, 1956 which was confirmed in appeal by the Commissioner and which has not been set aside by any superior competent Court, has already held that the allotment made to the appellant was without lawful authority and the respondent was a Khatedar of the land in dispute. This judgment finally sets this question at rest. There is no evidence before us to say whether the Maharajja Indragarh's action was as a land-holder. It has already been held that it was without lawful authority. Secondly, the learned counsel for the appellant urged that he has long been pressing in the previous suit that a suit for declaration without possession was not maintainable, but as they were unable to get a decree of possession in the previous suit, having not prayed for it, they have filed the present suit for possession. This suit, it was contended, is barred under the provisions of Order 2 Rule 2 of the C. P. C. It may be mentioned that a declaratory suit was filed in the Court of the Sub Divisional Officer on the 30th of July, 1953, when the Rajasthan Tenancy Act had not come into force. The law applicable in 1953 was contained Kota Circulars which did not provide any suit for declaration. A declaratory suit was, therefore, competent only under Sec. 42 of the old Specific Relief Act. This section provided that "any person entitled to any legal character, or to any right to any property, may institute a suit against any person, denying, or interested to deny his title to such character or its right, and the Court, may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not, in such suit, ask for any further relief; provided that no Court shall make any such declaration where the plaintiff being able to seek for the relief than a mere declaration of title, omits to do so. " It was contended that as admittedly the respondent was not in possession, he should in the previous suit have asked for possession alongwith the declaration of his rights as a khatedar. As he did not do Order 2 Rule2 of the C. P. C. will come into operation and his subsequent suit, it is contended, would be barred. O. 2, R. 2 of the C. P. C. says "every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) "where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished;" (3) "a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief, out if he omits, except with the leave of the Court to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. " In support of his contention the learned counsel for the appellant referred us to a ruling of this Board in Kirparam vs. Ramjilal (RRD 1963 page 24 ). In that suit also, respondent Ramjilal in 1946 filed a suit against the appellant Kirparam for a declaration that he was the heir of the deceased khatedar Pusaram as a reversioner and that the adoption deed on the basis of which appellant Kirparam made his claim, be cancelled. This suit was dismissed by the trial Court but was decreed by the first appellate Court on 26th of February, 1954. The High Court was also pleased to confirm this decree on 9-9-59. The respondent Ramjilal on getting the decree in his favour in the suit referred to above preferred the present suit for possession on 1-7-54. He alleged that the appellant Kirparam was a trespasser on the land. The suit was brought under Item 10, Schedule First, Group 'b' of the Raj. Revenue Courts (Procedure & Jurisdiction) Act, 1951, The suit was contested on the ground that it was barred by limitation because the appellant Kirparam would be deemed to be in possession of the land both on the date 14-6-46 when the first suit for declaration and cancellation of adoption deed was preferred and also on 11-3-49 when he got the possession back from the landlord. The suit was contested on the ground that it was barred by limitation by virtue of Sec. 184 of the Alwar State Land Revenue Act. The other contention which is relevant for our purposes, raised in that suit, was that the suit was barred by the provisions of Order 2 Rule 2 of the C. P. C. in as much as the respondent Ramjilal should have prayed for the relief of possession as well in the previous suit for declaration and cancellation and that because of his having not done so, he should be deemed to have given up that relief and the present suit could not be entertained. A division Bench of this Board after going through the law on the point, held that "the causes of action in both the suits for declaration of his title as well as for possession of the disputed land was the same. Consequently when the plaintiff filed the suit for declaration of title and cancellation of adoption deed, he should also have added the relief for possession in the same suit. Omission to sue for the relief of possession without the leave of the Court, surely debarred the plaintiff from bringing the suit in terms of sub rule 3 and sub-rule 2 of Rule 2 of Order 2 of the C. P. C. This omission to sue for declaration should, therefore act as a bar for possession. " We may observe that the aforesaid ruling came up for consideration before the Rajasthan High Court in Ramjilal vs. Board of Revenue and another (AIR 1964 Rajasthan 114) in which their Lordships have observed that Order 2 Rule 2 does not require that the plaintiff must unite in the same suit all the causes of action which he may have against the defendant, nor does that rule operate as a bar when the subsequent suit is based on a cause of action different from that on which the first suit was based. On these principles, it was determined, in view of the facts of the case that in the first suit filed by Ramjilal for a declaration and cancellation of the adoption deed, according to the admission of Kripa Ram himself, he was not in possession of the property in respect of which the second suit was filed, it could no be said that Ramjilal had intentionally relinquished any portion of his claim. Even if he had sued for possession in the first suit, he could not obtain a decree for possession against Kirparam who was admittedly not in occupation of the same. It would have been virtually, futile on the part of Ramjilal to sue for the possession at this time. It appears to us that the Rajasthan High Court in AIR 1964 Raj. 114, have set aside the order of the Revenue Board in Kirparam vs. Ramjilal on the grounds of mis-apprehension of the case by the Board. It was assumed that Kirparam was in possession also at the time Ramjilal had brought his suit for declaration. As admittedly he was not, the two claims were based on different causes of action. We do not think it, in any way, can be interpreted as an authority for the proposition that where two claims arise out the same cause of action, they can be splitted. The learned counsel for the appellant also referred us to Maikwa vs. Jageshwar (RD 1943 page 393) in which it was held that the law does not encourage multiplicity of litigation and with that end in view requires that all the relifs which can be claimed at the same time, should be claimed in one and the same suit. Failure to do so is penalised both by the proviso to Sec. 42, Specific Relief Act and by Order 2 Rule 2 C. P. C. Where, therefore, a plaintiff entitled to seek a relief for possession also sues only for a declaration of rights only, a second suit by him for possession by the ejectment of the defendant is not maintainable. The learned counsel for the respondent replied by urging that objection in regard to Order 2, Rule 2 were not taken in the trial Court. It was also urged that this objection was not taken before the Revenue Appellate Authority. As this objection was not taken at the earliest stage, it cannot be allowed to be taken at this stage, because the appellant-defendant could not be allowed to make a new case at this stage and because, secondly, it was barred by the principles of res judicata. He relied on 1960 SC. 335 for the proposition that plea under proviso to S. 42 of Specific Relief Act should be taken at the earliest time. To this objection, the learned counsel for the appellant replied that the plea under Order 2 Rule 2 is a mixed question of law and fact. If the facts are clear on record, the only question left out is that of a pure question of law. In our opinion, there was sufficient reason why the appellant could not take up to the plea of Order 2 Rule 2 in his written statement before the trial Court. When the written statement was filed, though the declaratory suit was decreed by the Sub-Divisional Officer on 7th of December, 1956, yet an appeal was pending in the Court of the Commissioner. When the decree passed by the Sub-Divisional Officer was being contested in appeal, we do not think, it was necessary that the plea of Order 2 Rule 2 could have been taken in the written statement, as para 7 of the memo of appeal before the Commissioner shows that this plea was positively taken before the learned Commissioner and he had discussed it at page 3 of the copy of the judgment which is on record of the trial Court. This plea could not be taken up before the learned Revenue Appellate Authority for the simple reason that the appellant had not filed an appeal before that Court, but he was there in the position of a defendant, As we have stated above, the laconic nature of the judgment of the learned Revenue Appellate Authority, does not enable us to pronounce an opinion that the appellant had not raised this plea as a respondent before the Revenue Appellate Authority. Moreover we find considerable force in the argument that a pure question of law can be raised for the first time even in second appeal. We are supported in this conclusion by Chitlay's commentary on sec. 100 Note 56 page 135, VIIth Edition, which states as under : "a point of pure law apparent on the face of the record and involving no further development by evidence may be taken in second appeal, even though it may not have been raised in the Courts below. In other words, a point of law not depending upon an examination of the evidence and not requiring fresh investigation of facts, may be taken for the first time in the second appeal. The reason is that it is the duty of the court to take judicial notice of and apply the law correctly and a failure to do this will be an error of law. " This is a well recognised exception to the general rule that ordinarily such a plea should be taken at the earliest. There are also various authorities in support of this view, such as 1966 Assam page 118, 1966 MP page 307; 1954 Calcutta 539; 1951 SC. 16; and 1965 SC. 1325. It would appear to us that the plea now taken by the learned counsel for the appellant with regard to the non-maintainability of the suit by virtue of provisions of O. 2, Rule 2 in favour of the present case, a mere question of law and fact can be allowed to be raised for the first time in second appeal. We also think that there were sufficient explanations for the appellant not raising this plea in the courts below. Coming to the merits of the question, whether the present suit should be held barred, by virtue of provisions of Order 2 Rule 2, we may observe that the law on the point has been succinctly laid down in 1964 Rajasthan page 114, that Order 2 Rule 2 is based on the principle that the defendant should not be vexed twice for one and the same cause. It prohibits the splitting of claims and the splitting of remedies and further provides a penalty if the claim or remedy is split without the leave of the Court. A transaction may contain many causes of action. Order 2 Rule 2 envisages that all claims or reliefs in one cause of action must be covered in one suit. The question for determination now under this principle, would be whether in the present case, the claim for declaration as a khatedar and the claim for possession arose out of one cause of action or different causes of action. In the first para of the plaint, the respondent had himself stated that he was the khatedar of the land measuring 5 bighas Field No. 459 located in Sumerganj Mandi, 8 years earlier without his consent and without giving him any compensation, the Maharaja Indragarh collusively gave possession of this land to the appellant on the condition that he would put up a garden and the land was also entered in the Khata of the appellant. The Judicial Committee in Khalilkhan vs. Mahboob Ali Mian (75 Indian Appeals 121) (AIR 1949 PC 78) considered the principles in cases falling under O. 2, r. 2 C. P. C. , and summarized them as follows : " (1) Whether the claim in the new suit is in fact, founded on a cause of action distinct from that which was the foundation for the former suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. AIR 1955 page 661 Allahabad lays down that in order, the causes of action in the two suits for the application of O. 2 r. 2, it is necessary that not only the facts which would entitle the plaintiff-applicant to establish his propriety in the two suits be the same but also that the attack on the title or the infringement of the plaintiff's rights at the hands of the defendant must have arisen out of one transaction. Applying these principles to the present case, it is obvious to us that both the claim for possession and declaration in this case have, even as admitted by the respondent, arisen in the course of the same transaction and formed part of the same cause of action. The learned counsel for the respondent referred us to a number of authorities with a view to proving that a claim for declaration of khatedari rights and claim for possession may arise out of two different causes of action. The first case cited by him was Bajranglal vs. Shankar Singh (RRD 1965 page 315 ). In this case in a previous suit for declaration of khatedari rights, relief of partition was not claimed. It was held that a new suit asking for partition, is not barred. Obviously, the property in this case was in medio and the suit for declaration of khatedari rights and for partition arose out of two separate causes of action. The facts of the present case are entirely different, as we have stated above. The second authority relied on by the learned counsel for the respondent was AIR 1951 Bombay 167. This ruling also is not applicable to the facts of the present case, as in that case the appellant who was entitled to only one relief out of several alternative reliefs and sued for only one of them, His remedy to sue for other alternative reliefs was not held to have been barred, for he could not be said to have been entitled to more than one relief. This ruling was based on the construction of a special contractual agreement. Their lordships have observed that a person entitled to more than one reliefs, but sues for only some of those reliefs and does not choose to sue for the latter reliefs, is barred u/o. 2 r. 2. These observations are more appropriate to the facts of the present case. The learned counsel for the respondent also referred us to AIR 1964 All. 531 (Keshava Misra vs. Bhulai Mishra) in which their Lordships relying (we may observe hesitatingly) on the previous authority of that Court, held that where an earlier suit for declaration of title in land was dismissed and it was held that the plaintiff was a co-tenant alongwith the defendant, a second suit for joint possession of the aforesaid land is maintainable and is not barred by O. 2, r. 2. In this case we may observe, as expressly held by their Lordships, a suit for declaration of title in land by Keshava Misra, the plaintiff in the case, arose out of a different cause of action from his claim for possession. In the present case, as we have seen, the dispossession of the respondent, as well as the entry of the appellant as a khatedar, arose out of the same transaction. The learned counsel for the appellant also relied on 1959 Mysore, p. 227, in which the first suit was for declaration that the plaintiff was an adopted son and for Shikmidari. It was decided in that suit that the plaintiff was adopted son, but was not in possession. The plaintiff had not prayed for possession in the first suit. He only contended that the decree obtained by the defendant against the widow of B, that the defendant and not the plaintiff was the adopted son of B, was a collusive and a fraudulent one and therefore not binding on him. He prayed for Shikmidari on the ground that he was in possession of the property. In the subsequent suit on the other hand the plaintiff prayed for possession of the properties on the ground that the court in the previous suit had held that he was not in possession of the suit properties though he was the adopted son of B. It was held that the causes of action in the two suits were distinct. The first suit had proceeded on the ground that the plaintiff was in possession of the property, while the second suit was for possession of the suit properties. Since, in this ruling also, it was positively held that both the suits rested on two different causes of action the provisions of O. 2 r. 2 was inapplicable. The first suit rested on a decree obtained fraudulently, but assumed that the plaintiff was in possession. The second suit raised out of a different finding of the Court that the plaintiff was not in possession. This ruling is also distinct from the facts of the present case. In our view, therefore both the claims for declaration as a khatedar and for possession, even according to the admission of the respondent plaintiff, arose out of the same cause of action. The provisions of Order 2 Rule 2 will be clearly applicable and the present suit will be barred. The third point raised by the learned counsel for the appellant related to the limitation. He contended that both the trial court and the appellate court had failed to record any finding on this important question which was raised. Even according to the admission of the respondent plaintiff, he was dispossessed 8 years before he filed the plaint on the 29th of May, 1957, which would bring the date of dispossession round about May or June, 1949. At the time of dispossession, the Indragarh State had entered into an agreement dated 20th of April, 1948 with the Kota Darbar surrendering all their sovereign revenue powers. It was the Kota Circular, therefore which were applicable. Under sec. 95 of the Kota Circular No. 3, the period of limitation for wrongful ejectment of a tenant was only six months. He further contended that even under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 proviso 1 to Sec. 9 barred any suit not filed within the six months after the commencement of this Act. Even under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 Item 12 of 1st Schedule Group 'b' which lays down a period of only three years for bringing a suit by a : person who has been wrongly ejected and this period also has expired. The learned counsel for the respondent, in reply, urged that the present suit was instituted on the 24th of June, 1957. The period of limitation for a suit under sec. 183 is 12 years for which the cause of action arose on the 15th of Oct. , 1955 when the Rajasthan Tenancy Act came into force. He further contended that the cause of action] also arose on the 7th of December, 1956 when the Sub-Divisional Officer declared Khatedari rights in his favour. He also contended that his dispossession if came in 1949, it was item No. 10 and not item No. 12 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 which would apply in his case. We have given careful consideration to these arguments. So far as the application of the appropriate law to the present suit is concerned we think that the Rajasthan Tenancy Act, in no way can be said to apply. This Act has not been given retrospective application and, therefore, it will apply only to such remedies which were in force at the time it came into operation. There is nothing in the Rajasthan Tenancy Act to suggest that it revives the remedies which had already lapsed. If, therefore, the remedy of ejecting a trespasser lapsed on the 5th of October, 1955, the Rajasthan Tenancy Act would not be competent to revive the same. This question has already been considered by a Division of the Board in Bansilal vs. Shambhu Singh (RRD 1956 page 250 ). Sec. 3 of the Rajasthan Tenancy Act has repealed the various enactments relating to revenue laws which were in force, but according to caluses (a) and (b) of Sec. 6 of the General Glauses Act, this repeal could not revive anything not in force or existing at the time at which the repeal takes effect or affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder. It was, therefore, held in RRD 1956 page 250 that "causes of action which have become time-barred would not, therefore, gain a fresh lease of life. Secs. 2 and 206 of the Rajasthan Tenancy Act have to be construed in such a manner as not to make them repugnant to each other. If the intention of the legislature had been that Sec. 206 should give a fresh lease of life to cause of action that had become time-barred, it would have expressly said so. " We, therefore, do not think that the arguments of the learned counsel for the respondent has any force that the cause of action in this case arose on the 15th of October, 1955, merely because of the coming into force of the Rajasthan Tenancy Act. We have, however, to see whether the cause of action, in this case, was continuing upto 15th of October, 1955. No doubt under Sec. 95 of the Kota Circular a remedy to eject a trespasser was lost to the respondent, as he did not file any suit within six months of the date of his dispossession, but the remedy under the Specific Relief Act, still remained in fact and as the limitation of a suit under that Act was more than the limitation prescribed for a suit under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, l951 if the suit was covered under Item 12, then proviso 1 to Sec. 9 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, came into operation and as no suit was filed within six months of the coming into force of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, the present suit will have to be held as time barred. The crux of the whole question is, therefore, whether item No. 10 of the First Schedule Group 'b' applied in this case or it was item No. 12, which were applicable for, if, item No. 10 was applicable, the proviso 1 to Sec. 9 would not come into operation, and the present suit will have to be held within limitation. As remarked by Justice Modi in Kajor vs. Pratap (RLW 1960 page 434) the language of this item is not at all precise and happy. The distinction, however, between item 10 and 12 was brought out in Bhuralal vs. Thikana Badi Sadari (RLW 1954 page 743) and Mina vs. Board of Revenue, Rajasthan (RLW 1958 page 590 ). In the later ruling, the distinction has been clearly brought out as follows : "the term ejectment is used to denote two kinds of affairs. It is used either in connection with a tenant or in connection with a trespasser. We speak of the ejectment of a tenant by a landlord or any person claiming under him. We speak of an ejectment of a trespasser by a person who has any right or claim on the land. Again we use the term eject, or ejectment when person with a superior title ejects a person with an inferior title or with no title. A trespasser can be ejected by any person who is the owner of the land or by one deriving any right title or interest from him. Viewed in this sense items Nos. 10 and 11 apply to the suits filed by a landlord or proprietor or under proprietor or any person claiming under them for ejectment of a trespasser. Item No. 12 refers to a suit by a person who has been wrongly ejected. The words wrongly ejected have, therefore, reference to a person who had the right to possess the land. This is also clear from the fact that a suit for compensation is also included in item No. 12. Now if a trespasser has been ejected, he cannot claim compensation. The case of a trespasser is, therefore, excluded under item No. 12. Thus interpreted, item Nos. 10, 11 and 12, all receive a distinctive meaning. " In Bhuralal vs. Thikana Badi Sadri (RLW 1954 page 743) their Lordships have also remarked as follows: - "we are not quite sure, however, whether serial No. 10 would apply to the present case, because, according to learned counsel for the plaintiffs, Thikana Badi Sadri could not be said to be a trespasser as the plaintiffs have looked upon the Thikana as their Malik, or in other words, as a superior proprietor. It may not, therefore, be justifiable to regard the Thikana in this case as a trespasser, and if that is so, serial No. 10 would not seem to apply to the present suit. "
(3.) IT is, therefore, clear to our mind that item No. 12 will apply to cases where a suit is filed against a person having a superior title or any one holding from him. Whereas item No. 10 will apply when a suit is filed against a rank trespasser. The learned counsel for the respondent argued that the aforesaid view has been overruled in Kajor vs. Pratap (1960 RLW page 434 ). We have carefully gone through that ruling and we do not think that this ruling in any way (which is a Single Bench Ruling) over-rules the proposition of law stated above. In Kajor vs. Pratap, a suit was filed by the plaintiff on the ground that he had been in peaceful possession of the land and that he was dispossessed by the defendant. Defendant's case was that his mother had during his minority entrusted the land in suit to the plaintiff for cultivation on condition that the latter would return it to the defendant when he came of age, and that he had entered into the possession of the land with the consent of the plaintiff. IT was held that the land did not belong to either of the parties. We may observe that it was not a case of the landlord having dispossessed the tenant, as is the present case. His Lordship Mr. Justice Modi, however, dealing with various types of cases that would be covered under ITem No. 10 or ITem No. 12, dealt with the case like the present, he remarked that "then there is another type of case in which it could not possibly be said that the suit was against a trespasser because on the plaintiff's own admission, the defendant was a superior, proprietor and, therefore, in such a case item No. 10 could not possibly apply. " (See for example, Bhuralal vs. Thikana Badi Sadri (3 ). " The ratio decidendi in that case is that when the facts of the case bring a particular suit within the ambit of both the ITem No. 10 and ITem No. 12, then ITem No. 10 should be made applicable as according to the accepted principles in such a case such construction should be adopted which favours the right to suit rather than which bars that right. In the present case, we do not think that there is any doubt in respect of the facts of the case which may bring them within the preview of both items 10 and 12. Admittedly, the respondent was dispossessed by Maharaja of Indragarh who was the landlord and the appellant derived this title from this Maharaja of Indragarh. For these reasons, we think that as item 12 would apply in this case the suit should have been brought within 6 months of the coming into force of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951. The suit is time barred even if three years are reckoned from 1951 when the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act came into force. For the reasons given above, we think, the present suit is barred not only by provisions of O. 2 Rule 2, but also by the Limitation Act. The order of the Revenue Appellate Authority, therefore, cannot be sustained. We accept the appeal and set aside the judgment and decree of the Revenue Appellate Authority. .;


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