- (1.) Section 27, Act X of 1859, directs that every zemindar or superior tenant is required to admit to registry and otherwise give effect to all transfers, when made in good faith, and all successions and divisions." There is therefore a direction by an Act of the Legislature to admit to registry, not for the benefit of the public but for the benefit of a private individual. It appears to me that a breach of that direction of the Legislature gives a cause of action to the private individual, who would have a right to sue in the Civil Court unless exclusive jurisdiction is given to some other Court, or unless concurrent jurisdiction to maintain the suit is given to another Court and the party seeks his remedy in such other Court.
(2.) In the present case therefore the question arises whether the proceedings taken against the zemindar were proceedings in a civil suit for a cause of action. It has been held in the Full Bench case, Phillip v. Moitro Case No. 7 of 1862 July 1st 1863. (B.L.R. Sup. 21), to which reference has been made, that an application made to the Collector under section 25 of the Act is not a suit; and in the Full Bench decision, Bissumbhur Misser v. Gunput Misser Case No. 1988 of 1861 March 18th 1863. (B.L.R. Sup. 5.), it was held that proceedings under section 28 were a suit. The words in section 23 are however very different from those in section 25 or section 27. In section 28 there are the words" every such suit shall be instituted within the period of twelve years from the time when the title of the person claiming the right to assess the land or dispossess the grantee, or of some person claiming under him, first accrued," but those words are not contained in section 25 or in section 27.
(3.) It appears to me that section 27 falls within the same rule as section 25, and that the proceedings authorized to be taken before the Collector under section 27 were not proceedings in a suit; consequently that those proceedings were no bar under section 2 of Act VIII of 1859 to this suit. These cases will go back to the Court of first instance to be tried on the merits. The costs will abide the ultimate decision of the suit.;