Nagendra Rai, J.
1. The petitioner has challenged the validity of the order dated 13-7-2001 passed by the Assistant Survey Settlement Officer, Rosera in Title Suit No. 143 of 1998 entertaining the suit under Section 106 of the Bihar Tenancy Act (hereinafter referred to as the Act) filed by respondent No. 5 after condoning the delay of 11 years and few months and subsequent order dated 29-1-2003 rejecting the application filed by the petitioner raising objection regarding maintainability of the suit as the same is barred by limitation on the ground that he has no power to review the earlier order.
2. Before the learned single Judge the petitioner relied upon a judgment rendered by a learned single Judge of this Court in the case of Kunti Kumari alias Manju Singh v. State of Bihar, reported in 1998 (3) PLJR 490, in support of the submission that the settlement authority has no power to condone the delay in filing the suit filed under Section 106 of the Act as Section 5 of the Limitation Act is not applicable. The learned single Judge doubted the correctness of the aforesaid judgment as according to him, the suit filed under Section 106 of the Act is not a suit filed in the Civil Court and as such it is an application and is covered by Section 5 of the Limitation Act and/that is how the matter has been placed before us by an order of Hon'ble the Chief Justice.
3. Chapter X of the Act deals with record of rights and settlement of rents. Section 103A of the Act deals with preliminary publication, amendment and final publication of record of rights. On 9-5-1987, record of rights was finally published and certified. Respondent No. 5 Balram Jha filed Title Suit No. 143 of 1998 on 30-12-1988 under Section 106 of the Act challenging the entries made in the record of rights. On 13-7-2001 he filed an application under Section 5 of the Limitation Act to condone the delay which was more than 11 years and on the same day, the delay was condoned and the suit was admitted. On 7-11-2001, the petitioner appeared and filed a written statement challenging the maintainability of the suit on the ground of limitation as well as reviewing the claim made in the plaint on merit. On 9-4-2002 the petitioner filed an application to decide the question of limitation as a preliminary issue which was rejected by order dated 29-1-2003. Both the orders dated 13-7-2001 and 29-1-2003 have been annexed as Annexures-3 and 5 to the writ application.
4. The learned counsel appearing for the petitioner submitted that provision of Section 5 of the Limitation Act will not apply with regard to suits filed under Section 106 of the Act and as such the authority has no power to condone the delay in filing the suit beyond time under the provision of the Limitation Act, and accordingly the order condoning the delay in filing the suit beyond time is impermissible in law.
5. The learned counsel appearing for the respondents on the other hand submitted that the suit under Section 106 of the Act is not a suit filed before the Civil Court but the same will be treated to be an application and as such the provision of Section 5 of the Limitation Act will apply and the Assistant Settlement Officer has rightly condoned the delay in filing the suit/proceeding beyond time.
6. The question which arises for consideration in this case is as to whether the authority before whom the suit has been filed under Section 106 of the Act has power to condone the delay by taking recourse to Section 5 of the Limitation Act.
7. Record of rights are prepared under Part I of Chapter X of the Act. Under Section 101 of the Act, the State Government from time to time is authorised to issue an order for preparation of record of rights by Revenue Officer in respect of the lands in any area, estate or tenure or part thereof. Section 102 mentions the particulars which are to be recorded. Thereafter a draft record of rights is prepared which is published under Section 103A of the Act and after disposal of the objections which are invited a final publication is made under the afore said section 106 of the Act contains a provision with regard to institution of the suit within three months from the date of the certificate of the final publication of the record of rights. The suit is to be filed by presenting a plaint on stamped paper for decision of any dispute regarding any entry which a Revenue Officer has made in or any omission which the said officer has made from the record. However such dispute be between the landlord and tenant or between the landlord of the same or of neighbouring estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant exists; or as to whether land held rent free is properly so held, or as to any other matter. The said section runs as follows :
106. Institution of suit before a Revenue Officer
'In proceedings under this Part, a suit may be instituted before a Revenue Officer at any time within three months from the date of the certificate of the final publication of the record of rights under Sub-section (2) of Section 103A of this Act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from the record;
Whether such dispute be between landlord and tenant, or between landlord of the same or of neighbouring estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant exists, or as to whether land held rent free is properly so held, or as to any other matter :
and the Revenue Officer shall hear and decide the dispute :
Provided that in any suit under this section, the Revenue Officer shall not try any issue which has been, or is already, directly, and substantially in issue between the same parties, or between parties under whom they or any of them claim, in proceedings for the settlement of rents under this part, where such issue has been tried and decided, or is already tried, by a Revenue Officer under Section 105A.'
8. The procedure which is to be followed for disposing of the suit has been provided under Section 107 of the Act and it provides inter alia that the Revenue Officer shall subject to the rules made by the State Government under the Act adopt the procedure laid down in the Code of Civil Procedure for the trial of the suit and his decision in such proceeding shall have the force and effect of a decree of a Civil Court in a suit between the parties and subject to the provisions of Sections 100 and 109A shall be final.
9. Section 109A provides for appeals from decisions of Revenue Officers which authorises the State Government to appoint one or more persons to be a Special Judge for hearing the appeals from the decisions of the Revenue Officer under Sections 105 to 108 which includes Section 106 of the Act also. It further provides that the appeal shall lie to the Special Judge from the decisions of a Revenue Officer passed under Sections 105 to 108A and the provisions of the Code of Civil Procedure relating to appeals shall; as nearly as may be, apply to all such appeals. Sub-section (3) of Section 109A provides that subject to the provisions of Chapter XLII of the Code of Civil Procedure, 1882, an appeal shall lie to the High Court from the decision of Special Judge in any case under this Section except the matter relating to settling of rent, as if he were a Court subordinate to the High Court.
10. Thus, the conjoint reading of these three sections show that a suit under Section 106 of the Act has to be filed by presenting a plaint on stamped paper and the said suit shall be tried by following a procedure as laid down in the Code of Civil Procedure for the trial of the suits and the decision taken by the Revenue Officer will be, as if, have the force and effect of a decree of a Civil Court in a suit between the parties and the appeal is provided before the Special Court and second appeal is provided before the High Court. The period of limitation for filing the suit is fixed under Section 106 of the Act and the same is three months from the date of certificate of the final publication of the record of rights.
11. The Limitation Act has been enacted to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 3 of the Limitation Act bars entertainment of the suits, appeals and the applications after the expiry of the period of limitation as provided under the said Act. It provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
12. Section 5 of the Limitation Act contains a provision for admission of any appeal or any application except the application under Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or application. Section 5 runs as follows :--
'5. Extension of prescribed period in certain cases.-- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.'
13. Section 5 of the Limitation Act does not empower the Court to admit the suit after expiry of the period of limitation on the ground of sufficient cause. The other sections of Limitation Act, namely, Sections 4 and 6 to Sections 24 contained a provision with regard to enlarging the period of limitation on one or the other grounds even with regard to suits with which we are not concerned in this case.
14. Section 29 of the Limitation Act contains a saving clause and Sub-section (2) is relevant which runs as follows :
'29(2).-- Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local law.'
15. According to the said provision if in any special or local law a different period of limitation is prescribed then what is prescribed in the Schedule of the Act with regard to any suit, appeal or application the provision of Section 3 of the Limitation Act shall apply as if the said period were the period prescribed under the Schedule of the Act. It provides that for determining the period of limitation prescribed in any suit, appeal or application by any special or local law, the provisions of Sections 4 to 24 (inclusive) shall apply only provided they are not expressly excluded by such special or local law.
16. Thus, according to aforesaid provisions, the Court has no power to condone the delay on the sufficient ground after expiry of the limitation under Section 5 of the Limitation Act with regard to suits. Such power is vested with regard to appeals and applications only.
17. The Bihar Tenancy Act is a local law and a different period of limitation has been provided which shall be treated to be a period provided under Section 3 of the Limitation Act and the provisions of Sections 4 to 24 will apply unless expressly excluded by the said local law.
18. Sections 184 and 185 of the Act contain provisions with regard to limitation which are as follows :
184. Limitation in suits, appeals and applications in Schedule III.-- (1) The suits, appeals, (proceedings) and applications specified in Schedule III annexed to this Act shall be instituted and made within the time prescribed in that Schedule for them respectively; and every such suit, (appeal or proceeding) instituted, and application made, after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded.
(2) Nothing in this section shall revive the right to institute any suit or appeal or make any application which would have been barred by limitation if it had been instituted or made immediately before the commencement of this Act.
185. Portions of the Indian Limitation Act not applicable to such suits, etc.-- (1) Sections 7, 8 and 9 of the Indian. Limitation Act, 1877 (15 of 1877) shall not apply to the suits, (proceedings) and applications mentioned in the last foregoing section.
(2) Subject to the provisions of this Chapter, the provisions of the Indian Limitation Act, 1877 (15 of 1877) shall apply to all suits, appeals (proceeding) and applications mentioned in the last foregoing section.'
19. The provisions contained in Section 184 of the Act is same as Section 3 of the Limitation Act and it provides that suits, appeals or any proceeding instituted or application made after the period of limitation as prescribed under the Schedule III shall be dismissed although the limitation has not been pleaded and Section 185 of the Act provides that the provisions of Sections 7, 8 and 9 of the Indian Limitation Act of 1877 which correspondence to Sections 6, 7, 8 and 9 of the present Act (contains a provision with regard to enlargement of period on the ground of disability) shall not apply to suits appeals (proceedings) and applications mentioned in Section 184 of the Act, i.e. with regard to proceedings for which a specific period of limitation is provided in Schedule of the Act. Sub-section (2) of Section 185 of the Act provides that subject to the provisions of this Chapter, the provisions of the Indian Limitation Act shall apply to all suits, appeals or proceedings and applications mentioned in the last foregoing section that is to say with regard to proceedings as covered under Section 184 of the Act.
20. Thus, except Sections 6, 7, 8 and 9 the provisions of Sections 4 to 24 of the Limitation Act shall apply to the suits, appeals, proceedings and applications covered by Section 184 of the Act which as stated above only refers the suits, appeals, proceedings or applications as specified in Schedule III of the Act.
21. Admittedly, no period of limitation has been prescribed for filing of a suit under Section 106 in the Schedule of the Act, on the other hand, specific period of three months has been provided as stated above in the section itself for filing the suit and as such Sections 184 and 185 have no application with regard to suits filed under Section 106 of the Act. Even if they are said to be applicable, the matter would not be different as there is no power to condone the delay in filing the suit under Section 5 of the Limitation Act.
22. According to learned counsel for the respondents, the suit filed under Section 106 of the Act is not a suit in stricto sensu, that is the suit filed before the Court and the same shall be treated to be an application and in that case. Section 5 of the Limitation Act will be applicable.
23. No doubt, the authority, the Revenue Officer, deciding the matter under Section 106 of the Act is not a civil Court but the proceeding which has been filed before him is a suit as section clearly states that the suit is to be filed by presenting the plaint on stamped paper and the provisions of the Code of Civil Procedure will be applicable for disposal of the matter and the same is subject to appeal up to the High Court as stated above.
24. It is settled by a catena of decisions of this Court that the scope of the suit or proceeding under Section 106 of the Act to alter the entry made in the record of rights is limited to the question of possession only and the authority has no power to decide the question of title and the finding recorded on the question of possession will operate as a res judi cata in a subsequent suit where the relief for possession is sought for on establishment of title. In this connection, reference may be made to the Full Bench decision of this Court in the case of Nand Kumar Rai v. State of Bihar, reported in AIR 1974 Patna 174.
25. The suit has not been defined in the Act but in the Limitation Act Section 2(1) defines the suit which says the suit does not include an appeal or an application. So it is different from an appeal or application, The Apex Court in the case of H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan, reported in AIR 1964 SC 444, held that 'a proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of a dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within Section 86 of Civil Procedure Code.'
26. The question for consideration in this case was that as to whether the reference under the Industrial Disputes Act against the Ruler is to be treated as a suit as contemplated under Section 86 of the Code of Civil Procedure which provided that without the consent of the Central Government the Ruler cannot be sued in any Court and in that context it was held that unless the proceeding commences with the filing of a plaint or the dispute is ordinarily triable in a Civil Court, the proceeding cannot be termed as a suit.
27. As stated above, the suit is filed under the Act by presentation of a plaint on stamped paper and the provisions of the Civil Procedure Code are applicable for disposal of such matters and as such proceeding initiated under Section 106 of the Act is a suit and not an application as urged on behalf of the respondents. The decision relied upon by the counsel for respondents has no application in the present case. He has relied upon a judgment of the Apex Court in the case of Krishna Kumar Choudhary v. Alliance Agro Industries (P) Ltd., reported in 1991 (1) PLJR (SC) 3, wherein it was held that Section 29 of the Limitation Act is applicable to condone the delay in filing the application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The learned counsel for the respondents has also relied upon a Division Bench judgment of this Court in the case of Kula Nand Jha v. The State of Bihar, reported in 1998 (3) PLJR 693, wherein relying upon the aforesaid judgment of the Apex Court the Division Bench of this Court has held that the provisions of the Limitation Act will apply to the proceedings under the Ceiling Act and the authorities under the Act are competent to condone the delay in filing the appeal or revision.
28. In those cases, the question for consideration was for condoning the delay in filing the appeal, revision or entertaining the application and that was not the case of entertainment of the suit.
29. Similarly in the case of Chunchun Chaudhary v. State of Bihar, reported in 1989 BLJ 41 : (AIR 1989 Patna 34) the question for consideration was whether addition of the parties can be made and this Court held that in view of provisions of Section 107 of the Act, the provision of Order I, Rule 10(2) of the Code will apply and the party can be added by taking its recourse and in this connection it was also held that Section 21 of the Limitation Act will also apply which contains a provision with regard to effect of substituting or adding new plaintiff or defendant in a suit. Thus, the said case is not an authority on the point that Section 5 of the Limitation Act is applicable in a suit filed (under) Section 106 of the Act.
30. Thus, the submission advanced on behalf of the respondents is rejected and it is held that the suit filed under Section 106 of the Act is a suit and is covered by the provisions of the Limitation Act and there is no power vested in the authority to condone the delay in filing the suit filed beyond time under Section 5 of the Limitation Act. The entertainment of the suit filed beyond the period of limitation after condoning the delay was impermissible in law.
31. There is another reason to come to the same conclusion. If the authority under the Act is not treated as a Court then, the provision of the Limitation Act will not apply to it as it is settled by catena of decisions of the Apex Court that the provisions of the Limitation Act apply only to proceedings in 'Courts' and not to proceedings before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Court under the Codes of Civil or Criminal Procedure. (See AIR 1985 SC 1279, Sakuru v. Tanaji).
32. Thus, on this ground also it may be held that Section 5 of the Limitation Act is not applicable with regard to suits covered under Section 106 of the Act.
33. Thus, our conclusion is that under Section 5 of the Limitation Act, the Court has no power to condone the delay in filing the suit under Section 106 of the Act beyond the period of limitation and as such the order condoning the delay and entertaining the suit filed beyond time is without jurisdiction. The suit was not maintainable as it was barred by limitation.
34. Accordingly, the impugned orders contained in Annexures-3 and 5 to the writ application are quashed and the suit is dismissed as barred by limitation.
35. In the result, the writ application is allowed.
R.S. Garg, J.
36. I agree.