NIRBAN SINGH Vs. BARI BITTA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff was by right of survivorship and according to a mutual settlement, the exclusive and absolute owner in possession of certain zamindari properties consisting of six items set forth in the plaint, and that the principal defendant, Mt. Bari Bitta, had no right of ownership or partition thereto except to get Rs. 500 a year as maintenance allowance. The case put forward in the plaint was that the plaintiff was a member of a joint Hindu family with the principal defendant s, deceased husband, Gobardhan Singh, and that when he died Mt. Bari Bitta did not succeed to his estate as a Hindu widow. It was mentioned that she applied to the revenue Court for partition of some villages and the plaintiff objected, with the result that the revenue Court referred the plaintiff to the civil Court for a declaration of his ownership. The plaintiff, however, alleged that before he could file a suit there was a mutual compromise under which it was settled that the defendant would give up all claim to the villages in dispute in the revenue Court, as well as other properties which were the subject of dispute in the civil suit, and receive Rs. 500 as maintenance allowance. The contesting defendant pleaded that her husband was separate from the plaintiff and that she had succeeded to his estate as a Hindu widow. She denied that any complete compromise was arrived at between the parties which determined their proprietary title. It was also pleaded that the claim was barred under Secs.111 and 233(K) of the Land Revenue Act. The learned Subordinate Judge has not allowed the plaintiff an opportunity to produce oral evidence to prove the alleged compromise. His opinion was that such a compromise had to be reduced to writing and duly registered, and without such formality it was not enforcible in law. He accordingly excluded all evidence offered by the plaintiff to prove the terms of the compromise. Nevertheless, for purposes of limitation, he has recorded a finding that on the evidence he is inclined to hold that there was a compromise from which the defendant subsequently backed out. In his opinion the claim was not barred by limitation inasmuch as there was something tantamount to a fraud practised by the defendant. The plaintiff's suit failed merely on the ground that there was no registered document.

(2.) We are unable to agree with the Court below on either of the two main points decided by it.

(3.) The question really was not strictly one of limitation coming under the Limitation Act. Even if it were, Section 18 of the Limitation Act would hardly be applicable as that can apply only when the plaintiff has by, the fraud of the opposite party, been kept from the knowledge of his right or title. That obviously was not the case here. The question, however, is not one of limitation in the strict sense of the word. Under Section 111 of the Land Revenue Act, the partition Court has power either to decide the question of title itself or direct any party in the case to institute a suit within three months in the civil Court for the determination of the question raised. If the party ordered to file a suit within three months fails, to do so, under sub-C1. 2 of that section the Collector must decide the question against him. If the suit is instituted, the partition Court acts in accordance with the decision of the civil Court. It is an admitted fact that the present civil suit was not filed within three months of the order passed by the partition Court. On the 30th of April 1923, it held that the objector had failed to file a civil suit and that the partition proceedings should accordingly proceed.