JUDGMENT Deoki Nandan, J.
1. This is a plaintiffs' second appeal in a suit for declaration of the traditional boundary between two villages Ginthali and Kyard in the district of Pauri Garhwal, under Section 13 of Kumaun Nayabad and Waste Lands Act, 1948.
2. In brief the plaintiffs' case was that a part of the boundary of their village had wrongly been fixed in the settlement made in the year 1935, for not being in accordance with the boundaries fixed in the settlements of Sal 80 (1823 A. D.) and Sal 96 (1839). The defendants contested the case of the plaintiffs. It is not necessary for the purposes of the decision of this appeal to refer to the pleadings of the parties in this case. Issues framed by the trial court bring out the controversy between the parties. They were:--
(i) Whether the land lies within villages Ginthali and Maindwari according to Sal 80 and 96, boundary description ?
(ii) If so whether the boundary line running by pillars Nos. 41, 42 and 43 has been wrongly fixed during the present settlement ?
(iii) Whether the plaintiffs have been exercising exclusive customary rights of user of Gauchar, grass, fuel, panghat, paraw and passage over the land in suit ?
(iv) Whether the plaintiffs are entitled to the permanent injunction restraining the defendants from forming the panchayat forest within the land in suit and also from interfering with the rights of user of plaintiffs ?
(v) Whether the suit of the plaintiffs is barred by limitation as the plaintiffs knew of the boundary proceedings in the year 1935-36?
(vi) Whether the plaintiffs are estopped from filing the suit as plaintiffs acquiesced the construction of the boundary wall?
(vii) Whether the suit of plaintiffs is bad or misjoinder of causes of action in respect of the boundary of defendants' villages ?
(viii) Whether the suit is not maintainable as the villages boundaries already fixed are traditional boundaries ?
3. It appears that initially the trial court dismissed the suit by a judgment dated 8th December, 1956. That was set aside on first appeal and the matter was remanded to the trial court for a fresh trial. After remand, the trial court held on an appraisal of the evidence on the record, on issue No. 1, that the land in suit lies within the boundary of village Ginthali i.e. the plaintiffs' village, according to Sal 80 and 96 boundary descriptions; on issue No. 2, that the settlement of 1935-36 was incorrect and had been made without any reference to the boundary descriptions of Sal 80 and 96; on issue No. 3, that the plaintiffs have been exercising exclusively the custompary rights of Gauchar, grass, fuel, pan-ghat, paraw and passage over the land in suit; on issue No. 4, that the land in suit lay within the traditional boundary of the plaintiffs' village and that they have been exercising customary rights over it and' are entitled to a permanent injunction as prayed; on issue No. 5, that notwithstanding the settlement of 1935-36, the plaintiffs had throughout been enjoying the customary rights over the land in suit as part of their village and that being so they were not bound to bring the suit so long as they continued to enjoy those rights uninterruptedly and in this view of the matter the suit was not barred by limitation; issues Nos. 6 and 7, appear to have not been pressed before the trial court; and on issue No. 8, it held that the suit was maintainable. In the result the trial court decreed the suit declaring that the land shaded red in map 301-A was within the traditional boundary of village Ginthali and that the plaintiffs had customary rights of Gauchar, grass, fuel, panghat, paraw on the land in suit, and the defendants were restrained from raising any communal forest over the land or in any manner interfering with the plaintiffs right thereon.
4. The lower appellate court has by the judgment under appeal reversed the decree of the trial court, basically on the finding that the suit was barred by limitation although it has also recorded finding against the plaintiffs on the merits of the case.
5. Mr. S.N. Dhoval, learned counsel for the plaintiff-appellants, contended before me that the finding of the lower appellate court that the suit was barred by limitation is erroneous in law, and that its findings on the merits of the case were the result of a wrong approach, and were thus vitiated in law.
6. The main reason given by the lower appellate court for its finding against the plaintiffs is that if they were aggrieved by the settlement of the boundary of their village by Ibbotson settlement, they ought to have brought a suit to that effect within limitation. The lower appellate court even observed that "such a suit is not contemplated by Section 13 of the Kumaun Nayabad and Waste Lands Act." Having made this observation it added that "If there had been no certification of the boundaries in 1935-36, the plaintiffs could have brought a suit for declaration of their traditional boundary as defined in the Settlement of Sal 80 or Sal 96." Mr. S.N. Dhoval, learned counsel for the plaintiff-appellants did not challenge before me the finding arrived at by the lower appellate court that the residents of the plaintiffs village had knowledge of the boundaries fixed in the settlement of 1935-36 as and when the same were fixed, and proceeded on the the assumption that the residents of their village may be deemed to have been parties to the appeal which was filed before the Records Officer, a copy of whose judgment is Ext. A-11 on the record. Even so, urged learned counsel that under the definition of traditional boundary, given in Clause (10) of Section 3 of the Kumaun Nayabad and Waste Lands Act, 1948, even Sal 80 or Sal 96 boundaries could be rectified "by order of the Settlement or Records Officer or by judicial decision." Learned counsel urged that the boundaries fixed by the order of a Settlement or Records Officer could also be rectified by a Civil Court under Section 13 of the Kuman Nayabad and Waste Lands Act, 1948, in a suit for declaration or injunction or for both, in respect of the traditional boundaries of a village, like the present suit.
Learned counsel referred me to the judgment of the Division Bench dated 4th September, 1979 in Second Appeal No. 1596 of 1969 : (reported in 1979 All LJ 1307), Daulat Singh v. Khushal Singh. The observation of the lower appellate court that if the plaintiffs were aggrieved by the boundary of their village as defined in the settlement of 1935-36, they ought to have brought a suit to that effect within limitation and that such a suit is not contemplated by Section 13 of the Kuman Nayabad and Waste Lands Act, does not, therefore, appear to be correct in law. That apart, the main basis on which the lower appellate court has, however, non-suited the plaintiffs on the ground of the bar of limitation, is that the suit ought to have been brought within a period of 6 years from the finalisation of the settlement of 1935-36.
According to the lower appellate court even if the plaintiffs were in possession and enjoying all the rights claimed by them in respect of the land suit until the disturbance of those rights in the year 1955 when the defendants wanted to raise a communal forest, the suit was barred by limitation, for, again according to the lower appellate court, the definition of traditional boundaries in Section 3 (10) of the Act makes it clear that the boundaries demarcated in the last settlement of 1935-36 are now the traditional boundaries and that a suit for declaration of those boundaries can be filed under Section 13 of the Kumaun Nayabad and Waste Lands Act, but that, such a suit must be filed within limitation from the date of the accrual of the cause of action, i. e. within, 6 years from the date of the first accrual of the cause of action, that is, the date when the boundaries were determined by the settlement of 1935-36. In the opinion of the lower appellate court, the plaintiffs did not get any fresh cause of action in the year 1955 when the defendants wanted to raise a communal forest over the land in dispute.
7. Having heard, learned counsel, I am afraid, the above view of the lower appellate court cannot be sustained. No doubt the plaintiffs could have filed a suit for declaration in respect of the traditional boundary of their village as soon as those boundaries were 'wrongly' fixed at the settlement of 1935-36. But they were not bound to do so in case the land affected by such 'wrong' fixation of boundaries continued in their possession, or that they continued to exercise their customary rights of Gauchar etc., on the land affected by the 'wrong' fixation of the boundaries at the settlement. The plaintiffs' case was that they continued to enjoy their rights without any disturbance until the year 1955. In disposing of the question of limitation, the lower appellate court has proceeded on the assumption that the plaintiffs did continue to enjoy those rights. The lower appellate court has not recorded any clear finding, while dealing with the question of limitation, on the point whether the plaintiffs were in fact enjoying those rights without any interruption on the land affected by the 'wrong' fixation of the boundaries; although while dealing with the same question as a part of the merits of the case, the lower appellate court has held that the plaintiffs could not be said to have been enjoying those customary rights.
8. In dealing with the question on merits, the lower appellate court does not seem to have bestowed the same care and attention which it would have in case it had found in favour of the plaintiffs on the question of limitation; and further, in deciding the merits of the case it appears to have proceeded on the assumption that the land in suit lay within the defendants' village. The very assumption was destructive of the plaintiffs' whole case inasmuch as the question was whether the land in suit lies within the plaintiffs' village or the defendants' village. Under the circumstances it is apparent that the lower appellate court did not approach the question from the correct view point.
9. Mr. K.C. Dhuliya, learned counsel for the respondents, only reiterated before me the reasons given by the lower appellate court for its findings. He could not and did not dispute the position that the correctness of the traditional boundaries as fixed at the latest settlement of 1935-36 could be investigated and adjudicated upon by the Civil Court in a suit under Section 13 of the Kumaun Nayabad and Waste Lands Act, in view of the judgment of the Division Bench in Daulat Singh's case (1979 All LJ 1307) (supra). He tried to urge that the suit must fail as the land vested in the State, by relying on a judgment dated 3rd April, 1979 of a learned Judge of this court sitting singly, in Second Appeal No. 1651 of 1955 (Alam Singh v. Padmendra Singh) with respect that judgment must be confined to its own facts, and if it purports to lay down anything different from what has been laid down in Daulat Singh's case (supra), it must be deemed to have been overruled by the latter.
10. In the result this appeal must be allowed but as I am not in a position to go into the correctness or otherwise of the findings of the trial court on the merits, I would remand the matter for re-hearing of the first appeal by the District Court at Pauri Garhwal.
11. I accordingly allow the appeal, set aside the judgment and the decree appealed from, and remand Civil Appeal No. 19 of 1967 of the Court of Civil & Sessions Judge, Tehri Garwal to the court of the District Judge, Pauri Garhwal for re-hearing in accordance with law, either himself or by any other court of the Additional District Judge within his judgeship. The costs in this court shall abide the result.