ALI KITCHLU Vs. MASJID BOLLA KAK THROUGH HABIB SHEIKH

JUDGEMENT

(1.) THIS is a Revenue first appeal against an order of the Collector, Srinagar, dated 8th Magh, 2008, and arised out of the following facts: - As early as 1st Magh, 1999, the plaintiff appellant brought a suit in a Revenue Court with the allegation that he was wrongfully dispossessed from the suit land of which he was the full owner, though shown as a cultivator thereof in the Revenue records. He prayed for the return of possession under section 56 Tenancy Act. He succeeded in getting a decree from the Revenue Assistant on 9th Sawan, 2001. The defendant preferred an appeal before the then Collector (Pandit Maharaj Krishen Dhar). The Collector set aside the decree of the trial Court on 23rd Chet, 2001, and ordered that the plaint be returned to the plaintiff -appellant (respondent in that appeal) for presentation to a Court of competent jurisdiction. The then learned Collector (Pandit Maharaj Krishen Dhar) has based his order for the return of the plaint on the following facts which may be given in his own words : Says he : The plaint is clear that the plaintiff -respondent asserts his proprietory rights. He has re -affirmed this by means of in application and a clear statement today before me. A proprietor forcibly ousted by a trespasser cannot obtain any redress from a Revenue Court. If he had admitted himself from the very start i.e., in the plaint to be a mere tenant, the Revenue Courts could take cognizance of the case. But this is not what the respondent says. In view of these facts the only order that I can make is that the appeal be accepted and the case be sent back to the Revenue Assistant with the direction that the plaint be returned to the plaintiff -respondent for presentation in a Court of competent jurisdiction . The plaintiff -appellant did not feel satisfied with the Collectorâ„¢s order dated 23rd Chet, 2001, and he went in Revision to the Revenue Commissioner. The Revenue Commissioner by his order dated 19th Har, 2002, rejected his Revision. Having failed in the Revenue Courts, the plaintiff -appellant brought the present suit on 30th Sawan, 2002. In this suit the plaintiff has claimed the status of a tenant and not that of a proprietor as in the previous suit and has prayed that possession of the suit land be restored to him under section 56 of the Tenancy Act. The defendants -respondents resisted the suit on the ground of limitation. The present learned Collector (Kh. Ghulam Nabi) found in favour of the defendants and dismissed the plaintiffs suit. The plaintiff has now come up in first appeal to this Court.

(2.) THE plaintiff -appellantâ„¢s learned counsel has argued that the trial Court should have given the plaintiff the benefit of the provisions of section 14 of the Limitation Act according to which the time during which the plaintiff had been prosecuting with due diligence another Civil proceeding whether in a Court of first instance or in a Court of appeal against the defendant shall be excluded in computing the period of limitation prescribed for any suit. The argument of the appellantâ„¢s learned counsel is that the plaintiff -appellant prosecuted in good faith another proceeding in a Court which from defect of jurisdiction was unable to entertain it, and as such the time spent in prosecuting the earlier proceeding should be excluded for computing the period of limitation. Concritising the argument of the learned counsel it comes to this : That the former suit of the plaintiff -appellant failed .because the Revenue Court had no jurisdiction to adjudicate upon a suit which was based upon and involved the question of ownership and title, and as such his failure was due to the fact that the former Court was unable to entertain his suit because of defect of jurisdiction and therefore the time spent by the plaintiff -appellant in prosecuting the former proceeding should be excluded in computing the period of limitation in the present suit. But the learned counsel has not taken into consideration another requisite of section 14 of the Limitation Act which is to the effect that the former and the latter proceeding must be founded upon the same cause of action. It is true that if the cause of action is the same, the parties are the same, and the other conditions given in section 14 are fulfilled, then in computing the period of limitation the time spent in another Court will be excluded it that "another Court" was, because of a defect or jurisdiction, unable to entertain it. Now let us see if die cause of action in the two proceedings is the same.

(3.) IT has been found in the former suit by both the Collector and the Revenue Commissioner that the plaintiff had based his suit upon his proprietary rights. But the plaintiff in the present suit does not assert his proprietary rights, nor does he base his suit on them, but comes forward on quite a different basis, i.e., upon his rights as a tenant. This would show that the cause of action is totally different in the present case from the one in the former, and if the cause of action is different, section 14 Limitation Act can in no way be invoked in support of the position taken by the plaintiff. Reference may in this connection be made to A. I. R. 1916 Oudh 155 in which it has been held that "the time spent by the landlord without avail in trying to get the holder of some of his lands ejected through the Revenue Courts as tenant cannot under section 14 Limitation Act, be excluded in a subsequent suit filed by the landlord in the Civil Court for the purpose of having that holder ejected as trespasser." From this it would become abundantly clear that the time spent by the appellant in carrying on an independent litigation founded on a different cause of action cannot be excluded in computing the period of limitation in the present suit. According to section 56 of the Tenancy Act a tenant who has been ejected from his tenancy without his consent or otherwise than in execution of a decree, may within one year from the date of his dispossession or ejectment institute a suit for recovery of possession.  Now in this case the allegation is that the plaintiff -appellant was dispossessed of the suit land on 12th Poh, 1999. He should have brought the present suit within one year from 12th Poh, 1999, but then the present suit has been brought as late as 17th Sawan, 2002, that is to say, much after one year. We have just found that the plaintiff in view of the fact that the former suit was Founded on a different cause of action, cannot seek or derive any, benefit from section 14 limitation Act. The present sun is, therefore, clearly barred by limitation.