ORDER
B.L. Yadav, J.
1. Present writ petition under Article 226 of the Constitution of India is directed against the judgment and order dated 9th June 1980 passed by Board of Revenue, the respondent No. 1 in second Appeal No. 221 of 1973-74 (Raghunath v. Samiullah and others) allowing the appeal filed by the defendant, the respondents 2 and 3 and dismissing the suit filed by the present petitioners under Section 202 of U.P.Z.A. and L.R. Act 1950 (for short the Act) for the ejectment of the defendants the respondents 2 and 3
from an area of 1 bigha and 8 biswa of plot No. 548 situate in village Kanihar, Pargana Jhunsi, Distt. Allahabad,
2. This case has a chequered history. Present petitioners had filed a civil suit numbered 16 of 1954 for declaration that the land in dispute was ancestral grove of the plaintiffs and they were the grove holders or bhumidhars of plot No. 548 and the defendant Raghunath, father of respondents 2 and 3 has no concern with it. He was appointed to look after the grove in dispute a few years prior to the institution of the suit but he managed to get his name entered in revenue papers without knowledge of the plaintiffs and threatened to dispossess the plaintiffs hence necessity for the suit.
3. The defendant, respondents 2 and 3 contested the suit and alleged that earlier there was grove but later on it ceased to remain grove as there were only 8 trees which were on the boundaries of the plot and the land became cultivable, was let out to Raghunath, the father of the respondents 2 and 3 on payment of Rs. 6/- as rent and for the last more than 12 years the defendant had been in cultivatory possession of the disputed land. In any case the defendant being recorded as “occupant”, acquired rights of Adhiwasi under Section 20(b) of the Act and the suit was barred by time.
4. Learned Munsif under issue No. 4, on 19th Dec., 1965 held that the disputed grove has lost its character and became cultivatory land and another issue was framed as to whether the defendant was in cultivatory possession of the land in dispute and was recorded as occupant and acquired Adhiwasi . rights. That issue about Adhiwasi rights, was referred to Revenue Court, which was decided in favour of the defendant and it was held that defendant became adhiwasi and lateron, after the appointed date, he became its Sirdar and was not liable to be ejected, accordingly the suit was dismissed. The plaintiffs present petitioners preferred an appeal before the Civil Judge who allowed the same in part vide his judgment and decree dt. 31-3-60 (Annexure i to the writ petition) holding that in the south-eastern portion of the disputed plot’the cultivation was not possible and the
defendant could not acquire Adhiwasi rights on that portion. At the best he could become Asami and the plaintiffs, present petitioners, continued to be grove holders (Bhumidhars). The plaintiffs, appellants were granted declaratory relief that they were grove holders but as the defendant, the father of respondents 2 and 3 was an Asami and relief of ejectment in respect of agricultural land on relevant date, can be given only by Revenue Court hence plaintiffs were directed to go to Revenue Court and to file a suit under Section 202 of the Act for ejectment of the defendant as an Asami of the grove land. The decree passed by the Munsif dismissing the suit in respectof the area which was cultivable was maintained However, Second Appeal No. 3109 of 1960 was preferred by the plaintiffs, present petitioners before this Court and the same was dismissed on 8th Jan. 1963 (Annexure 2 to the petition) and the judgment and decree passed by the Civil Judge became final. In pursuance of the directions contained in the judgment of the Civil Judge dt. 31-3-60 Revenue Suit No. 4 of 64 u/S. 202 of the Act (Annexure 3 to the petition) was filed in Revenue Court, against the father of the respondents 2 and 3 and the same was decreed vide judgment and order dt. 8-2-73 passed by Assistant Collector 1st Class Allahabad (Annexure 4 to the petition) for the ejectment of defendant Raghunath, father of respondents 2 and 3 from an area of 1 bigha and 8 biswas holding that plaintiffs were bhumidhars and the defendant being Asami in respect of south eastern portion of the grove land area is liable to ejectment. Against that judgment and decree 1st appeal was filed by the father of respondents 2 and 3 before the Commissioner, who allowed and remanded the same for fresh decisions in the light of the observations made in the judgment dt. 19-1-74 (Annexure 5 to the petition). Against that judgment second appeal (Second Appeal No. 221 of 1973-74) was filed by the father of respondents 2 and 3 before the Board of Revenue, U.P. at Allahabad, the respondent No. 1 and the same was allowed by thejudgmentandorderdt. 9th June, 1980 (Certified copy of the order filed on record) setting aside the judgment and decree of the Additional Commissioner and Assistant Collector 1st Class and dismissing the suit of
the plaintiffs, the present petitioners, as barred by time and declaring the defendant appellant to be sirdar in possession of the land in dispute. This order dt. 9-6-1980 passed by respondent No. 1 is impugned order in present writ petition.
Mr. H.C. Kharbanda, the learned counsel for the petitioner urged that the Board of Revenue committed an error apparent on the face of the record in dismissing the suit and in holding it to be barred by time in as much as suit was not barred by time as the original civil suit No. 16 of 1954 was filed by the present petitioners in the Civil Court for a relief of declaration that the plaintiffs were grove holders of plot No. 548 and the defendant has no concern with it and that declaratory suit was dismissed by Munsif but in first appeal being filed by present petitioners, against the judgment and decree passed by Munsif, it was held by the Civil Judge, vide judgment dt. 31-3-60 (Annexure 1 to the petition) which was affirmed in the Second Appeal by this Court vide judgment dt. 8th Jan. 1963 (Annexure 2 to the petition), that the defendant was not Adhiwasi rather he was an asami of the area to the south eastern portion of the plot which was not cultivable and the plaintiffs were grove holders upon that portion but as the relief for ejectment could not be granted by Civil Court, plaintiffs have to go to Revenue Court to seek the relief of ejectment of the defendant as an Asami. This finding became final and was not challenged by the defendant, the father of respondents 2 and 3. Therefore, suit for ejectment under Section 202 of the Act was filed in pursuance of the directions contained in the judgment dt. 31st March 1960 passed in declaratory suit filed by the plaintiffs in the Civil Court. Hence this revenue suit being in consequence to the decision in declaratory suit, cannot be held to be barred by time and the plea of limitation cannot be made applicable in that suit and can be permitted to be raised. In any case suit for ejectment under Section 202 of the Act was filed by the petitioners on 26-7-64 (Annexure 3 to the petition) when the Appendix 3 (iii) to the Rules under the Act in SL. No. 25(iii) has already been amended since 16th Nov. 1954 and there was no limitation provided for such
a suit hence there was no question of the suit being held to be barred by limitation. Reliance was placed on Ravi Verma v. Sheo Pal Singh, AIR 1977 NOC 5 (All).
5. Learned counsel for the respondents 2 and 3 Mr. S.R. Singh on the other hand urged that the suit was barred by limitation and the declaratory decree was not capable of execution hence present suit under Section 202 of the Act cannot be treated to be proceedings in nature of the execution proceedings and the amendment of the Appendix 3 to the Rules, Sl. No. 25(ii), since 16th Nov. 1954 was not retrospective hence it cannot be treated that there was no limitation for the suit. Reliance was placed on Kailashpati Singhania v. Ram Gopal Gupta, AIR 1973 All 316.
6. After hearing learned counsel for the parties first question for determination is as to whether the suit under Section 202 for ejectment of Asami filed on 26-7-64 can be said to be time barred. The next question isas to whether in the present suit under Section 202 of the Act filed under the observations made, and directions contained in the judgment passed by Civil Judge and affirmed by this Court, the objection as to limitation can be raised at all by respondents 2 and 3. This third question is as to whether the amendment of Appendix (III) (Three) to the Rules, at Serial No. 25(ii), providing no limitation since 16th Nov. 1954, for suit for ejectment of Asami of Grove land, was retrospective?
7. As all the questions involved are in respect of limitation, it would not be inappropriate to have the policy of Law of Limitation, as stated in Halsbury’s Laws of England 4th Edition, Vol. 28 para 605 (page 266).
“The Courts have expressed atleast three differing reasons supporting the existence of the Statute of Limitations namely (I), that long dormant claims have more of cruelty than justice in them, (II), that a defendant might have lost the evidence to disprove a stale claim, and (III) that persons with good cause of action should pursue them with reasonable diligence.”
[See R.B. Policies at Lloyd’s v. Butler, (1950) 1 K.B. 76 at 81 : (1949) 2 All ER 226 at P. 230
and Jonesv. Bell grove Properties Ltd., (1949) 2 KB 700 at p. 704 and (Board of Trade v. Gayzer Irvine & Co., (1927) AC 610 at p.
628)].
8. Pursuing remedy with reasonable diligence is said in equity as vigilantiblis et non dor mientibus lex succurrit. The provisions of statutes of limitation which has the remedy and not the rights are rules of procedure only and form part of ‘lex fori’.
9. All statutes of limitation are analogous and receive uniform construction. They are beneficial Statutes and are to be construed liberally and not strictly. Besides the general statutes relating to the limitation, there are special statutes fixing special period of limitations in particular cases.
10. As all the questions involved are connected it is convenient to determine all of them together. The suit under Section 202 of the Act was filed by the present petitioners on 26-7-64. In view of Section 3 of the Limitation Act 1963 plea of limitation can be looked into by the Court itself although the defendant himself might not have raised that. At the same time it is well settled principle that limitation for a suit has to be counted on the date when the suit is filed and not from some previous date [See C. Beepathuma v. Velasari Shankaranarayana Kadamobolithaya, AIR 1965 SC 241 para 14 at page 245].
11. It has to be ascertained as to what was the period of limitation when the suit under Section 202 was filed. Section 29(2) of the Limitation Act, 1963 provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule. rule 338 of the U.P.Z.A. and L.R. Rules provides that the suits, applications and other proceedings specified in Appendix III, shall be instituted within the time specified therein for them respectively. Limitation Act 1963 is general statute of limitation whereas schedule III under the U.P.Z.A. and L.R. Rules contains special period of limitation for local law and is in fact special statute of limitation. Serial No. 25(ii) under Appendix
III is relevant and it shows that there is no limitation prescribed for a suit for ejectment of Asami of Grove land.
12. As regards the other limb of the arguments of the learned counsel for the respondents that since 16th Nov. 1954 the serial No. 25(n) of Appendix III, was amended and no period of limitation was provided but this amendment was not retrospective.
13. In the present case the retrospectivity of the Amendment was immaterial. The present petitioners have got a cause of action in 1954 to file a suit in respect of grove land, when defendants, the respondents2 and 3 (or their father) were sub-tenants of grove land. On the basis of this cause of action a suit for declaration of rights as grove holder could have been filed and that was maintainable in the civil court. The suit for declaration of rights of grove holder was filed by the present petitioners in 1954 in the civil court and that could not be said to be illegal. Even the plea of jurisdiction was not taken by respondent Nos. 2 and 3 in that suit. It was open to the present respondent Nos. 2 and 3 to have challenged the jurisdiction of the civil court. But that was not done. The form of suit at that time (1954) was to be decided on the basis of allegations made in the plaint. The allegations made in the plaint indicated that the plaintiff wanted a declaration as grove holder and that the defendants, respondent Nos. 2 and 3 have no title or right. That declaration was refused by the learned Munsif. A civil appeal was filed, which was allowed substantially to the extent that the declaration sought was granted in favour of the plaintiff, but at the same time it was directed by the judgment dt. 31-3-60 (Annexure-1 to the writ petition), that the plaintiffs, the present petitioners must file a suit for ejectment of the Asamis of the grove land, inasmuch as even though the plaintiffs were the grove holders, but after the date of vesting the defendants being sub-tenants of the grove land, became Asami and for their ejectment a suit was maintainable only in the revenue court and not in the civil court. Hence the plaintiff must file a suit for ejectment of the Asami under Section 202 of the Act. The cause of action in favour of the plaintiffs for filing a suit under Section 202 was not earlier cause of
action, but on the basis of the directions contained in the judgment of the first appellate court in Civil Suit, (vide Annexure-1 to the petition). It cannot, therefore, be said that the suit for ejectment of the Asami could have been filed by the present petitioners in 1954. Further Section 331 of the Act indicates cognizance of suits maintainable under different sections as appended in Schedule II. Obviously till 1961 there was no Explanation added to Section 331. In 1961 an Explanation along with Section 331 (1-A) was added to the following effect :
“Explanation.– If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted.
(1-A) Notwithstanding anything in Sub-section (1), an objection that a court mentioned in Column 4 of Schedule II, or as the case may be, a civil court, which has no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.”
14. In view of the aforesaid amendment introduced in Section 331 of the Act, it is clear that only since 1961 it was provided that if the cause of action was one in respect of which any relief may be granted by the revenue court, in that event the relief has to be moulded in such a form so that the suit could lie in the revenue court. In other words if the cause of action was one in respect of which a suit for injunction can also be filed in the civil court and a suit for declaration could also be filed in the revenue court, the plaintiff must mould his relief in such a form so that the suit can be filed in the revenue court. If there was any such objection to the jurisdiction of the court in which the suit has been filed, that objection must be taken at the earliest possible opportunity and in all cases before the issues have been framed.
15. Now the point is well settled that in 1954 a suit for declaration of rights of grove holder was maintainable in the civil court and it was not obligatory on the part of the plaintiffs to mould the relief in such a form so as to file a suit for ejectment of Asami under Section 202. The amendment adding an Explanation — Sub-section 331-A was added only in 1961 and the same was not retrospective. The suit u/S. 202 of Act for ejectment of the Asami was filed in pursuance of the observations made in the judgment of the first appellate court in Civil Suit and confirmed in Second Appeal by this Court as mentioned above. On the date when the suit under Section 202 was filed (i.e. on 26-7-67) there was no limitation provided. Hence the suit filed by the petitioners cannot be said to be time barred.
The matter can be viewed from another angle, particularly with reference to another point as to whether the objection can be taken by respondent Nos. 2 and 3 when the suit was filed by the petitioners on 26-7-64 in pursuance of the directions contained in the judgment of the first appellate court, that the suit, was time barred. Suffice it to say that as in the suit for declaration of right as grove holder filed in the civil court no objection was taken by respondent Nos. 2 and 3 that the court had no jurisdiction to entertain the suit or that the same was time barred. If the directions have been contained in the judgment dt. 31 -3-60 in Civil Suit as confirmed in Second Appeal on 18-1-63 that the plaintiff may file a suit for ejectment of the Asami, the propriety does not demand that respondent Nos. 2 and 3 can urge that the suit was time barred. In any case I have considered this question in view of the arguments advanced at great length on behalf of both the parties, and as on 26-7-64 when the suit was filed, there was. no limitation prescribed in Appendix III Serial No. 25, hence the suit under Section 202 filed by the present petitioners could not be said to be time barred. The order of Board of revenue accordingly cannot he sustained.
16. Now adverting to the case relied upon by learned counsel for respondents 2 and 3, in Kailashpati Singhania v. Ram Gopal Gupta, AIR 1973 All 316, it was held that declaratory
decree needs no execution and Section 47 of C.P.C. would not apply. In the instant case there is no question of execution of declaratory decree rather subsequent suit under Section 202 of the Act has been filed not as a measure of execution of the declaratory decree, rather in pursuance of the direction contained in the civil suit hence this case cannot be said to be of any relevance.
17. The title to the grove land had already been held in favour of the petitioners by Civil Court. The father of the respondents 2 and 3 was held to be sub-tenant of the grove land and became obviously an Asami and that the suit for ejectment of the Asami was maintainable only in Revenue Court under Section 202 of the Act. As the title of the plaintiffs, present petitioners, was established and the direction for filing the suit for ejectment of Asami was given by Civil Court and present respondents 2 and 3 did not challenge that judgment, decree and finding of the Civil Court, hence those directions and findings of the Civil Court have become final and respondents 2 and 3 are bound by them. They cannot wriggle out of the legal effect of the judgment and decree dt. 31-3-60 passed by Civil Court in Civil Appeal No. 11 of 1958 (Samlullah and others v. Raghunath, annexure 1) as affirmed in second appeal decided on 8th Jan. 1963 by Hon’ble A.P. Srivastava J. Now it is too late for the respondents 2 and 3 to either challenge Civil Court decree or the directions contained therein or to urge that the suit for ejectment under Section 202 of the Act filed by present petitioners is barred by time. The suit was within time. The Board of Revenue committed an error apparent on the face of record in dismissing the suit under Section 202 of the Act filed by present petitioners.
As the Additional Commissioner has remanded the case and against the order of remand Second appeal was allowed and instead of directing the Additional Commissioner to decide the appeal afresh the suit was dismissed by the Board of Revenue, but as the title of present petitioners as grove holders has been upheld in civil suit and the subsequent suit for ejectment of Asami of grove land under Section 202 of the Act was not time barred (as discussed above), the only inescapable corollary is that the suit for
ejectment under Section 202 of the Act filed by the petitioners against the respondents 2 and 3 has to be decreed and the judgment and decree dt. 9-6-80 passed by the Board of Revenue has to be quashed by issuing a writ of certiorari.
18. In view of the discussions made hereinbefore the writ petition succeeds and is allowed. Writ of Certiorari is being issued quashing the judgment dt. 9-6-80 passed by Board of Revenue (Certified copy on the record). The suit of present petitioners for ejectment of respondents 2 and 3 is decreed. The petitioners shall be entered as Bhumidhars in revenue papers and consequential changes in revenue papers would be carried out. Under the circumstances of the case, however, there shall be no order as to cost.
