1. The plaintiff sued for a declaration that he is entitled to irrigate his lands in a certain village within the proprietary estate of Urlam free of charge, for an injunction restraining the Government from collecting water cess from him and for recovery of water cess alleged to have been wrongfully collected. The learned District Munsif found that the last of these claims was barred under Article 16 of the Limitation Act, but gave the declaration prayed for, holding it unnecessary to grant an injunction against the Government. The learned Subordinate Judge has taken the view that, as the suit is barred in respect of the claim to recover the water-cess collected, the relief as regards the declaration is also barred. He argues that the cause of action upon which these reliefs were based is one and the same and that the relief by way of declaration was only incidental and ancillary to the prayer for a refund of the amount. It appears to me very doubtful whether this is a correct view of the plaintiff’s intention in filing the suit. I observe that in para. 12 of his plaint he prays first for the declaration, then for the injunction and only finally for the refund of the money, and it is certainly arguable that he attached as much or more importance to the declaration as to the refund. No authority has, been cited to me for the proposition that, where several reliefs are claimed as arising from one cause of action, the fact that one is time-barred will disentitle the plaintiff to the grant of any others which may not be time-barred. The only case which the learned Government Pleader refers me to is Ramachandra Aiyar v. Noorulla Sahib (1906) ILR 30 M 101 : 16 MLJ 477 (FB). There it is clear that the prayer for the declaration was only added in order to evade the rule with regard to Small Cause suits and the learned Judges decided the case on the ground that, all the reliefs which the plaintiff claimed in the suit could have been obtained without asking for a declaration a principle which certainly does not apply in the present case. Nor do I think that the general position which the learned Subordinate Judge seems to take up is supported by the two decisions to which he refers. The Secretary of State for India v. Assan relates to a case under. Section 14 of the Land Encroachment Act and as the suit was not instituted within six months of the date of the cause of action as required by that section it was held that the suit would be barred in respect of every relief applied for. Similarly in Sankarappa Naicken v. Secretary of State the terms of Section 59 of the Revenue Recovery Act were applied in the same manner. It appears to me that the same principle can only be applied in the present case if Section 59 of the Revenue Recovery Act controls the period of limitation within which the plaintiff could have brought this suit. This point has been discussed in Secretary of State v. Venkatratnam, but unfortunately the two learned Judges composing the Bench disagreed and the learned Chief Justice, to whom the case was referred, was able to dispose of it without deciding the question. He found that the payment in question was made under protest and without occasion arising for any proceeding under the Act and that for that reason Section 59 had no application. It appears to me that this question needs to Be decided in this case also before taking up the question of the applicability of Section 59. I am informed on behalf of the paintiff (appellant) that the payment was in fact made under protest and without the issue of coercive process, and if this be so I would follow the authority of the case just cited and hold that the period of limitation would be not as laid down In Section 59 but as prescribed by the ordinary law, so that the declaratory relief asked for by the plaintiff would not be time-barred.
2. I accordingly frame an issue, “Whether the plaintiff paid the water-cess on demand and without further procedings being taken for its recovery?” The case is remanded for a finding of this issue, after recording evidence thereon, in the light of the foregoing observations. If the Subordinate Judge finds on this issue in the affirmative, he may then proceed to dispose of the appeal. If he finds on the issue in the negative, the question whether Section 59 of the Revenue Recovery Act applies will then arise for decision, and according as it is decided the case should be disposed of. Costs to abide the result.
3. A certificate for the refund of the Court-fee will issue.