JUDGMENT
Ayling, J.
1. The preliminary objection is raised that in consequence of appellants’ failure to apply within six months of the death of the original 2nd defendant (which took place on 11th June 1911) to bring his legal representative on record, the appeal must be held to have abated as regards that party.
2. An application to set aside the abatement was made on 16th December 1912 and on this an order as prayed for was passed ex parte by Benson and Sundara Aiyar, JJ., on 6th February 1913.
3. Mr. Seshagiri Aiyar argues that this order being passed ex parte is not conclusive; and that he is entitled to ask us to re-consider the matter of the abatement in the light of the further affidavits since filed.
4. In my opinion this contention cannot be accepted and the order, dated 6th February 1913, is final subject only to review. Order XXII, Rule 9 (2), Civil Procedure Code, does not require the issue of notice: and it cannot be said that on this account the order of a competent Bench of two Judges is illegal; or that the subject-matter of it can be re-considered by a different Bench. It is open to any party who conceives himself to be injuriously affected by the order to apply for a review under Order XLVII: but no such application has been made in the present case, and we must, therefore, treat the order as final.
5. This view appears to me to be strictly in accord with that taken in two of the cases quoted to us Tekait Ajant Singh v. Sundar Mall 16 Ind. Cas. 567 : 17 C.W.N. 862 and Ganeshwar Singh v. Ganesh Daa 33 C. 1178 at p. 1182 : 10 C.W.N. 969 : 4 C.L.J. 177 : 16 M.L.J. 365 : 8 Bom. L.R. 719 : 3 A.L.J. 698 : 1 M.L.T. 308 : 33 I.A. 1344. In the remaining case, which is reported as Tripura Sundari Debi v. Dakshina Mohun Roy 5 C.L.J. 310 : 11 C.W.N 698 an ex parte order of a single Judge bringing a legal representative on record was held not to preclude the Bench before which the appeal came for disposal from considering the question of whether the application was within time and if not whether the abatement should be set aside. That case is, however, easily distinguishable. Apart from the fact that it was not an order setting aside abatement and was passed by a single Judge, there is the important distinction that it appears to have been passed in ignorance of the fact that the application for substitution of the legal representative was made after the prescribed time and that the appeal was liable to be abated, that is to say the question which the Bench was asked to decide had not been considered before at all.
6. In my opinion the preliminary objection must be set aside, and the appeal disposed of on its merits.
Tyabji, J.
7. A preliminary objection is taken before us that the appeal must be taken to have abated as against the original 2nd defendant, or rather that the setting aside of the abatement, to which I shall presently refer, was invalid, or otherwise of no effect as against the present 2nd defendant.
8. The 2nd defendant (Veerappa Ganana Desikaswamigal) died in June 1911. The appeal against him, therefore, abated in December 1911. An application was made to the High Court on behalf of the appellants for setting aside the abatement and for causing the legal representative of the deceased to be made a party to the proceedings, on the 16th of December 1912. The application was supported by an affidavit in which it was stated that the applicant did not know of the death of the 2nd defendant till October 1912. It was heard by a Bench of the High Court consisting of Benson and Sundara Aiyar, JJ. We are informed by the learned Pleader for the appellants that an explanation of the delay between October 1912 and the 16th of December 1912 was asked, and that, on certain letters being read to the Court, the explanation was accepted; and on the 6th of February 1913, it was ordered “that the abatement be set aside and that the name of Annamalaiswami be entered in the record of the second appeal and in the register of this Court as the legal representative of Veerappa Ganana Desikaswamigal, the said deceased 2nd respondent in Second Appeal No. 1045 of 1907.”
9. It is argued on behalf of the legal representative of the 2nd defendant that, as a matter of fact, there was no sufficient cause within the meaning of Order XX, Rule 9, Civil Procedure Code, preventing the appellant from continuing the appeal and that, therefore, the order setting aside the abatement was wrongly made and that we should now consider the appeal as having abated. It is said that we have power to cancel or otherwise to disregard the order setting aside the abatement, because that order was made to the prejudice of the 2nd defendant in proceedings to which he was not a party. The order is said to be wrongly made, because from the affidavit filed by the appellants it is clear that there was a delay of about two months, for which it is argued that no proper explanation is forthcoming, and because, even if there was any sufficient cause preventing one of the appellants, there was none as regards the other.
10. Order XXII, Rule 9 is imperative in this sense that, provided that “it is proved that he (the applicant) was prevented by any sufficient cause from continuing the suit”, there is no option left to the Court, for it is laid down that in that event “the Court shall set aside the abatement.” There is no appeal from an order setting aside the abatement, though there is one from refusal to do so: Order XLIII, Rule 1(k); nor can we in this case assume to ourselves the powers which a Court of Appeal may have under the ruling of Kichilappa Naickar v. Ramanujam Pillai 25 M. 166 (F.B). It, therefore, remains to consider whether we have inherent jurisdiction to reconsider the question whether the abatement should have been set aside on the 27th of February 1913. It is argued that we have this jurisdiction because the respondent’s rights have been prejudiced by the order setting aside the abatement and the argument was supported by the following words which were used by the Privy Council in Ganeshwar Singh v. Ganesh Das 16 Ind. Cas. 567 : 17 C.W.N. 862:
Their Lordships entirely agree with the learned Judges of the High Court that it is an elementary principle, which is binding on all persons, who exercise judicial or quasi -judicial powers, that an order should not be made against a man’s interest without there being given to him an opportunity of being heard.
11. In that case the question was whether the plaintiff could obtain possession of certain property from the defendant and this depended upon whether an execution sale was rightly set aside by the Commissioner of Patna, and whether the absence of the purchaser at the time when the order setting it aside was made was sufficient to invalidate that order as against the purchaser. Their Lordships’ after making the remark cited by me, say:
But, however this may be, it seems to their Lordships that the proper remedy of the purchaser, if aggrieved by this order having been made in his absence, was to apply to the Revenue Authorities for a re-hearing, and that it is now too late to ask for a remand on that ground.
12. This is, in effect, a re-statement of the penultimate paragraph of the judgment of Trevelyan and Banerjee, JJ., whose judgment was under appeal. They are reported to have said in Gunessar Singh v. Gonesh Das 25 C. 789 at p. 795:
A similar reasoning would prevent our entertaining any objection to the Commissioner’s order on the ground that he had not heard the purchaser. If the purchaser was aggrieved on this account, there is no doubt that he could have found an appropriate remedy in the procedure of the Revenue Court; but whether that be so or not, we cannot treat as invalid an order made by the Tribunal to which the Legislature has entrusted the power of making such order. We have no power to enquire into the circumstances under which the order was made or into the propriety of the order.
13. It is, therefore, clear that their Lordships of the Privy Council approved of the decision of the High Court that the High Court had no power to “treat as invalid an order made by the Tribunal to which the Legislature has entrusted the power of making that order”; and this notwithstanding that that Tribunal, in making the order in question, had in the opinion of the High Court “violated an elementary principle which is binding on all persons who exercise judicial or quasi-judicial powers.
14. It cannot be questioned in the case now before us that the order setting aside the abatement was made by the Tribunal empowered to make it; and, even if it is permissible to us to assume, for the purposes of argument, that on the materials then before the Court, the order ought not to have been made, it cannot be contended that there was any irregularity vitiating the proceedings; for it is admitted that the application under Order XXII, Rule 9, may be made ex parte, and that in the usual course it would be made ex parte.
15. There is, it is obvious, one distinction between the case just cited and the present one. In that case, the order sought to be set aside was that of a Revenue Court. Here it is an order of the High Court in these very proceedings But, sitting in the Court in which we do, we have no power to interfere with the order passed by Benson and Sundara Aiyar JJ., and there have been no proceedings for getting a review of that order. Indeed when it is considered how inapplicable any method of procedure either of review or of appeal would be for interference by us with the order in question, it seems to me to be clear that the Legislature intended such an order to be final so far as this Court is concerned.
16. I must now refer to two decisions on which reliance was placed. The first is Tripura Sundari Debi v. Dakshina Mohun Roy 5 C.L.J. 310 : 11 C.W.N. 698. In that case there never was any order setting aside the abatement. The legal representative of the 4th defendant Tripura, who was the appellant, applied to be put on record when six months had elapsed after the death of the deceased appellant, and was put on record without the abatement having been set aside: nor was the attention of the Judge called to the fact that the appeal had abated when the appellant’s representative was put On the record. Then, at the hearing of the appeal, for the first time the question was considered whether the abatement that had taken place on the expiry of the six months should be set aside. The Court permitted affidavits and counter-affidavits to be filed, considered them, and came to the conclusion that there was no reason why the abatement should be set aside. The case is no doubt authority for the proposition that, if after the appeal has abated the legal representative is wrongly brought on the record without the abatement being set aside, then the question whether or not the abatement should be set aside has still to be considered by the Court to whose notice that fact is brought for the first time. It has no bearing, as it appears to me, on the point whether we have power to set aside or disregard the setting aside of the abatement in the present case.
17. The other case relied upon before us is that of Tekait Ajant Singh v. Sundar Mall 25 M. 166 (F.B.) That case seems to be distinguishable in this respect that there the question which the Subordinate Judge had to consider was one necessarily affecting the merits of the subject-matter of the suit; it affected the original plaintiff because he was made a pro forma defendant instead of plaintiff, on the ground that he had assigned his rights to the applicant, and that the rights on the basis of which he had come to the Court were no more vested in him; it affected the defendants because the scope of the suit was enlarged so as to include the rights not only of the original plaintiff, bat also of a stranger to the suit whose assignee the applicant claimed to be. It was admitted there that the further hearing of the suit on the merits could not proceed without those questions being determined; but the Subordinate Judge thought that a fresh suit was necessary for their determination.
18. In the appeal now before us the question whether the order setting aside the abatement was made rightly or wrongly will not affect the merits of the appeal in any way. The question depends merely upon whether the appellant was prevented by sufficient cause from making his application earlier. The, causes preventing the appellant from making the application were quite independent of and did not affect the rights of the deceased respondent and his legal representative.
19. My conclusion is, therefore, that the order of Benson and Sundara Aiyar, JJ., setting aside the abatement was made by a Court perfectly competent to do so; that we have no power to question the correctness of that decision and that without doing so we cannot now consider that the appeal has abated.
20. It is unnecessary in this view to consider the other points argued by Mr. Rangachariar, and to determine whether the successor-in-office of the 2nd defendant is his legal representative within the terms of the Civil Procedure Code, Section 2(11), and whether Article 177 or Article 181 of the Limitation Act was applicable.
21. I agree for these reasons that the appeal must proceed on the basis that its abatement has been set aside.
22. The appeal was then heard on the merits.
23. Mr. T. Rangachariar, for the Appellants: The District Judge has decided the case only on the ground of limitation mistakenly treating the suit as one in ejectment. He has not considered the other points raised in the case and decided in the Court of first instance. Nor has he found when the possession became adverse. His judgment cannot be supported.
24. Mr. M.O. Parthasarathy Aiyangar (with him Mr. T.R. Ramachandra Aiyar), for the Respondents argued contra.
25. This second appeal arises out of a suit for a declaration that the properties referred to in the plaint are trust properties, for the removal of certain buildings erected on the land and for delivery possession of the land to the plaintiffs on behalf of the community, to which the plaintiffs allege that they and the defendants Nos. 4 to 27 belong. The claim was resisted on several grounds which seem to have been sufficiently raised in the issues framed in the suit.
26. The District Munsif somewhat reluctantly recorded findings on all the issues. He felt himself constrained to do so by the state of the pleadings. The District Judge has not considered all the issues. He seems to have overlooked the fact that the suit was not one merely for ejectment as he states in the beginning of his judgment. The pleadings in the suit are by no means perfect. But it seems that the real points on which the parties were at issue were, whether the property was private property or was to be held in trust for the community of the plaintiffs; and secondly, whether the rights of the community (if any) had been lost by a valid gift, or by adverse possession or by purchase in good faith for consideration without notice of the trust. As a subsidiary point it may also have had to be decided whether though the community may have the rights that they claim, they can now, on the facts as stated in the plaint, ask for immediate possession of the land. The subsidiary point does not affect the question whether the plaintiffs can claim the declaration above referred to. But we wish to record that the plaintiffs by their Pleader had to concede at the hearing that the last sentence of paragraph 2 of the District Judge’s judgment cannot be attacked by the plaintiffs. That sentence is as follows:
On the plaint allegations the suit for ejectment is clearly not sustainable, for 1st defendant has not left Chidambaram and he is certainly not dead.
27. The District Judge has ultimately decided the case apparently on the sole ground that the suit is barred by limitation. He seems to have misunderstood the nature of the suit which he has treated as one for ejectment only, overlooking the other points on which the parties were really at issue. His finding on the question of limitation cannot, therefore, be accepted. For the purpose of his finding on the question of limitation he seems to have assumed that the community was originally the owner or the land. In that ease, it persons purporting to act as trustees on behalf of the community, and allowed so to act by the community, give possession of the land to a third person, that person’s possession cannot initially be adverse to the community. The question that has to be decided in such a case is whether the possession which was originally permissive ever became adverse and, if so, at what time and whether it continued adverse for the period required either for creating rights under Section 28 of the Indian Limitation Act or for preventing under Article 142 or Article 144 of the first Schedule to that Act the rightful owner from asserting his rights by suit.
28. On the points which arise, therefore, the District Judge has not expressed any opinion. We must consequently ask the District Judge to record findings on all the issues in the case on the evidence on record. We have felt it necessary to indicate why we consider it desirable to ask for findings, but in so far as our remarks proceed on assumptions of fact we do not wish to restrict the District Judge in his consideration of the evidence. The plaintiffs will, however, be bound by the concession which their Pleader was forced to make and there cannot in any case be a decree for immediate possession.
29. The findings should be submitted within six weeks from this date and seven days will be allowed for filing objections.
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30. In compliance with the order contained in the above judgment, the District Judge of South Arcot submitted a finding on all points in favour of the plaintiffs, except that he found that the plaintiffs could not maintain the suit as they had not asked for the appointment of trustees as a consequential relief.
31. Mr. T.R. Ramachandra Aiyar, for the 3rd Respondent: The claim for a declaration is barred under Article 120, Limitation Act, as the cause of action therefor arose in 1893, on the date of sale.
32. Mr. G.S. Ramachandra Aiyar, for the 7th Appellant: There is no question of limitation, as there is no evidence to show that the 7th appellant was aware of the sale within six years of suit. The cause of action arose only when this appellant had knowledge of the denial of title. Thirumala Rao v. Kadekar Durgi Shettethi 22 Ind. Cas. 883 : 1 L.W. 134 : (1914) M.W.N. 197.
33. Mr. T.R. Ramachandra Aiyar, in reply: Want of knowledge on the part of the 7th appellant is not sufficient. Other members of the community were aware of the sale and their knowledge was enough to bar the right of the community. Further, declaration being only a discretionary relief, this was a case in which it ought to be refused.
34. We accept the findings. The 1st appellant states that he does not press the appeal. The 7th appellant, however, claims that on the findings accepted by us, there ought to be a declaration that the properties referred to in the plaint are trust properties belonging to the Vedamba Chetty community, subject to the right of the 1st defendant to be in possession thereof so long as he lives in Chidambaram.
35. Mr. T.R. Ramachandra Aiyar for the 3rd defendant, argues that the claim for a declaration is barred under Article 120 of the Limitation Act as it accrued at the date of the sale in 1893. The 7th plaintiff denies that he had any knowledge of this sale-deed within six years of the date of the suit Following Thirumala Rao v. Kadekar Durgi Shettethi 22 Ind. Cas. 883 : 1 L.W. 134 : (1914) M.W.N. 197 to which one of us was a party, we hold that the cause of action for a declaratory suit based on a denial of title does not arise until the plaintiff has knowledge of the denial. Mr. T.R. Ramachandra Aiyar argues, however, that some of the members of the community had knowledge at the date of the sale-deed, as they were parties to it. In our opinion, the knowledge of some of the member? cannot affect the right of the others.
36. It is then argued that in our discretion we ought not to make the declaration. When the majority of the co-owners are proved to have had knowledge of the denial of title, it may, no doubt, be a reason for declining to grant a declaration in favour of one of the other co-owners who asserts that he had no knowledge. In the present case, however, it seems to us that it is necessary for the declaration to be made, as otherwise the whole of this litigation will have been fruitless, though the defendant set up a false deed of gift and a collusive sale. The plaintiffs, however, claimed to be entitled to possession to which they were not entitled. We think, therefore, that the declaration should be given but without costs. Each party will bear his costs throughout.
