Jibanti Nath Khan and Hemandri Nath Khan by his mother and next friend Jogodishwari Dabee vs Gokool Chunder Chowdhry and Another

Pigot and Banerjee, J.—In this case we think the District Judge was right in holding that as to the claim in respect of 1292 and 1293 the suit is barred.

When the infant was first made a party-defendant, he was made a party in violation of the rule applied in the case of Dwarka Nath Mitter v. Tara Prosunna Roy ILR Cal. 160 cited before us and the suit was not properly brought. When he was made a party-plaintiff the claim in respect of 1292 and 1293 was barred. It is not necessary to decide whether, if the suit in its original form had been properly framed, the change of the infant from a defendant into a plaintiff would have been in violation of the Limitation Act. Perhaps not. But he was not properly on the record at all; and when he was made a plaintiff, after the claim had been barred, the effect of doing this was practically to institute a new suit. This was an attempt to evade the Limitation Act; it cannot be done; and as to the claim in respect of 1292 and 1293, the suit was properly dismissed.

As to the operation of the Registration Act, the correctness of the view taken by the District Judge depends, of course, on the question whether the putni on its being bought by the zemindar did or did not merge in the zemindar''s interest; for if the suit is well brought by plaintiffs as putnidars, in which capacity they seek to sue as Well as in that of zemindars, the Registration Act does not apply. No authority has been shown us for holding that the doctrine of merger applies to such cases as this in India, that is, that a putni interest must merge in the zemindari interest if they come into the same hands, and we do not think that we should, for the first time, so far as we are aware, apply the doctrine to such a case.

We therefore hold that the suit was well brought by plaintiffs as putnidars; that the Registration Act does not apply, and that, as to the rent for 1294, the plaintiffs are entitled to a decree. To this extent we allow the appeal. No order as to costs.