JIWACHH YADAV v. BISHWANATH CHAUDHAHY — 1968 DIGILAW 56 (PAT)

Judgment Shambhu Prasad Singh, J. This appeal is by defendant no. 1 to a suit under Order XXI Rule 103 of the Code of Civil Procedure in which the main relief claimed by the plaintiff was that the appellant had no right, title or interest in the properties in suit and that the plaintiff was the owner of the properties by virtue of an auction purchase and entitled to possession of the properties. 2. The plaintiff instituted the suit on following allegations. He obtained a money decree against defendant second party in Money Suit No. 186/2 of 1949/52 from the court of the Additional Subordinate Judge, Second Court, Darbhanga. Even before the judgment of the said suit he had got attached the properties in dispute which, according to him, exclusively belonged to defendant second party Durga Prasad (defendant no. 2). He levied execution of the decree in Execution Case No. 34 of 1953 and on 10.1.1955 purchased at a court sale plot no. 181 with a pucca house, plot no. 182 (a tank) and plot no. 214 (homestead land) which exclusively belonged to defendant second party and also his one-third share in the New Rice Mill. The three plots and the Rice Mill are all situated in village Katrahia within police station Darbhanga town in the district of Darbhanga. During the pendency of the execution case defendant second party had filed a petition challenging the valuation given by the plaintiff and the auction sale was held only after the application was disposed of. Again after the sale defendant second party filed an application under Order XXI Rule 90 of the Code of Civil Procedure but the same was dismissed for non-deposit of the security money as ordered by the court. Ultimately the sale was confirmed on 7.5.55. Thereafter when; the plaintiff went to take delivery of possession Mahendra Prasad Gupta, defendant no. 3 a son of defendant no. 2 and Phulwati Devi, defendant no. 4, wife of defendant no. 2, claimed that the house on plot no. 181 did not belong to defendant no. 2 but to them and obstructed the delivery of possession. In a proceeding under Order XXI Rule 97 of the Code of Civil Procedure which followed it, defendants 3 and 4 were found to have no right to put any such obstruction. Defendant no. 2, claimed that the house on plot no. 181 did not belong to defendant no. 2 but to them and obstructed the delivery of possession. In a proceeding under Order XXI Rule 97 of the Code of Civil Procedure which followed it, defendants 3 and 4 were found to have no right to put any such obstruction. Defendant no. 4 also instituted Title Suit No. 54 of 1957 challenging the correctness of the aforesaid order and claiming that the properties purchased by the plaintiff belonged to her and not to her husband. This suit was also dismissed. Then the plaintiff got a writ of delivery of possession issued for the second time but the Nazir who had gone to deliver possession was obstructed by defendant no. 1 who claimed that he had purchased the properties in dispute at a certificate sale in Case No. 30/C of 1957-58. It was defendant no. 2 who with ulterior motive of defeating the claim of the plaintiff got the house auction purchased in the name of defendant no. 1 at the certificate sale and obtained a nominal report of Dakhaldahani. Defendant no. 1 was a creature of defendant no. 2 and never came in actual possession of the properties purchased in his name. Further as defendant no. 2 had been left with no title in the property purchased in the name of defendant no. 1, the latter could not acquire any right, title or interest. The plaintiff filed an objection to the report of the Nazir not giving delivery of possession to the plaintiff. This petition was treated as a petition under Order XXI Rule 97 of the Code of Civil Procedure and was numbered as Misc. Case 38 of 1960. The court, however, dismissed this application on 20.7.1961 holding that defendant no. 1 was in possession of the house in question on his own account by virtue of purchase at the certificate sale and the plaintiff was obliged to institute the suit. 3. The appellant alone contested the suit and his case was as follows. The suit was barred by limitation. Unless the plaintiff valued the properties in dispute according to law and paid advalorem court fee, the suit could not proceed. 3. The appellant alone contested the suit and his case was as follows. The suit was barred by limitation. Unless the plaintiff valued the properties in dispute according to law and paid advalorem court fee, the suit could not proceed. As the appellant was not a party to the suit of the year 1949 filed by the plaintiff or execution proceedings, he was not bound by the orders passed in them or the sale held. The appellant was not a creature of the defendant no. 2 as alleged by the plaintiff and the plaintiff's allegation that defendant no. 2 was in actual possession of the properties in suit was not true. Certificate Case No. 30/C of 1957-58 was filed in the court of Certificate Officer, Darbhanga by the Union of India through the Income Tax Officer, Darbhanga against the New Rice Mill, Katrahia for recovery of income tax dues. In execution of the said certificate case the properties of the New Rice Mill, a partnership business, including lands etc. were sold at a public auction of the 5th of June, 1959 and purchased by the appellant, he being the highest bidder. The sale was confirmed on 14.8.1959 and appellant took actual and physical delivery of possession on 2.10.1959. Thereafter" the appellant let out the house on plot no. 181 to defendants 5 & 6 who are wife and sister respectively of defendant no. 3, on a monthly rental of Rs.25/-. The tenants also executed kirayanama in favour of the appellant. He had just cause for peacefully resisting the delivery of possession by the Nazir and Misc. Case No. 38 of 1960 was rightly decided. What the appellant purchased were properties of the partnership business and the plaintiff could not acquire any right, title and interest in them by purchase in execution of a decree as against one of the partners only in his individual capacity. The petition of the plaintiff under Order XXI Rule 97 of the Code of Civil Procedure was itself filed beyond the period of limitation fixed by the law and, therefore, the suit as one under Order XXI Rule 103 of the Code of Civil Procedure was not maintainable. 4. The court below has recorded the following findings :- (i) The appellant was not a mere name lender of defendant no. 2 but real purchaser in Certificate Case No. 30/C of 1957-58. 4. The court below has recorded the following findings :- (i) The appellant was not a mere name lender of defendant no. 2 but real purchaser in Certificate Case No. 30/C of 1957-58. (ii) The properties in suit belonged to defendant no. 2 and not the partnership and, therefore, the plaintiff has acquired perfect title to the properties, appellant cannot resist the claim of the plaintiff to these properties and the plaintiff is entitled to a decree for declaration of title to the properties in suit. (iii) As the application under Order XXI Rule 97 of the Code of Civil Procedure was dismissed on contest, the suit under Order XXI Rule 103 of the Code of Civil Procedure was maintainable. (iv) The suit was within time and not barred by limitation. 5. Mr. Raghunath Jha, appearing for the appellant, contended :- (i) The appellant not being a purchaser of plot nos. 182 and 214 he could not have resisted the delivery of possession in respect of these two plots and in absence of any resistance by him neither an application under Order XXI Rule 97 of the Code of Civil Procedure nor a suit under Order XXI Rule 103 of the Code of Civil Procedure was maintainable in respect of those two plots. (ii) The court below was wrong in holding that plot no. 181 with houses thereon was not a property of the partnership, and it ought to have held that it was a property of the partnership and that the appellant had acquired perfect title to it by his purchase at the certificate sale. (iii) As the application under Order XXI Rule 97 of the Code of Civil Procedure was found barred by time, the court should not have entertained it and the plaintiff was not entitled to maintain a suit under Order XXI Rule 103 of the Code of Civil Procedure on the ground that the said application was decided against him. 6. There appears no substance at all in the first contention of Mr. Jha. In the plaint in Paragraph 10 it was stated that when the Nazir went to the plot for effecting delivery of possession defendant no. 1, i.e., the appellant, objected to the same. 6. There appears no substance at all in the first contention of Mr. Jha. In the plaint in Paragraph 10 it was stated that when the Nazir went to the plot for effecting delivery of possession defendant no. 1, i.e., the appellant, objected to the same. The writ of delivery of possession was in respect of the entire property which is subject-matter of the suit and thus according to the plaintiff, the appellant objected to the delivery of possession of all the three plots. This assertion of the plaintiff was not denied by the appellant in his written statement. While admitting in Paragraph 9(f) of the written statement that the appellant offered resistence to the Nazir, but peacefully, in making over delivery of possession, he should have stated that his objection was to only one plot and not to the other two plots. P.W. 1, the plaintiff, in his examination-in-chief has also stated that the appellant obstructed the delivery of possession and claimed that he had purchased the properties in Sales Tax Certificate case in 1959 and got the delivery of 'possession effected. Obviously the plaintiff meant all the properties which are subject-matter of dispute in the present suit and he was not cross-examined on this question. True it is that defendants had purchased only one of the three plots but cases of obstruction to delivery of possession without any pretence of right, title and interest are not unheard of. On the pleadings and evidence of the parties this contention of Mr. Jha must stand rejected. 7. There is no direct documentary evidence in support of the title of defendant no. 2 or of the partnership of which he was a partner to plot no. 181 and it was contended by Mr. Jha that the onus being on the plaintiff to prove his case, in absence of any direct documentary evidence in support of the title of the predecessors-in-interest of the plaintiff-respondent and the appellant, the suit of the plaintiff must fail. It is true that initial onus in a suit under Order XXI Rule 103 of the Code of Civil Procedure to prove his title is on the plaintiff and that where the evidence of both the parties is equally unsatisfactory the party on whom the onus lies must fail. It is true that initial onus in a suit under Order XXI Rule 103 of the Code of Civil Procedure to prove his title is on the plaintiff and that where the evidence of both the parties is equally unsatisfactory the party on whom the onus lies must fail. The extent of onus, however, differs according to the facts and circumstances of each case and where evidence of both parties is taken together with probabilities are in favour of the person on whom the onus lies, he discharges the burden and becomes entitled to a decree in his favour. In the case of (I) V.E.A.R.M. Firm and another V. Maung Ba Kyin and another (A.I.R. 1927 Privy Council 237) the appeal before the Judicial Committee had arisen out of a suit under Order XXI Rule 63 of the Code of Civil Procedure and their Lordships made the following observations in favour of the plaintiffs who were respondents before them:- "Now they being the ostensible owners of the property under a duly registered deed and a deed of transfer, obviously the party claiming to attach that property for somebody else's debt, not their debt, but the debt of the original debtor must show that the sale was a fraudulent one... ..." This observation shows that in the case before them their Lordships of the Judicial Committee were of the view that the onus was upon the defendant and not on the plaintiff. This decision of the Judicial Committee has been considered in many subsequent cases and it has been held that their Lordships never intended to lay down that in suits under Order XXI Rule 63 or Order XXI Rule 103 of the Code of Civil Procedure the initial onus is not on the plaintiff but on the defendant and that they intended merely to lay down that in cases where the plaintiff proves that he has paid the major portion of the consideration money, he discharges the initial onus cast upon him and burden shifts thereafter to the defendants to prove that the plaintiff was not a real owner but ostensible one. I may refer only to one of such cases, a Bench decision of this Court in (2) Mahadeo Missir V. Ram Prasad and others (A.I.R. 1929 Patna 579). I may refer only to one of such cases, a Bench decision of this Court in (2) Mahadeo Missir V. Ram Prasad and others (A.I.R. 1929 Patna 579). In the instant case, the plaintiff purchased the properties in suit at a court auction sale in execution of a money decree in his favour and thus there was no question of the sale being without consideration. In the sale certificate issued by the Certificate Officer in favour of the appellant, which is his document of title, it is mentioned that the house on plot no. 181 which was sold to the appellant, was in the name of Durga Prasad i.e., defendant no. 2. Learned counsel for the appellant could not explain why three copies of the same sale certificate were exhibited in this case on his behalf. The three copies have been marked Exts. D, D(1) and D(2). There is no difference at all in Exts. D and D(1). Ext. D(2) differs from Exts. D and D(1) in this respect that above the list of the properties in Exts. D and D(1) the words "List of properties of the New Rice Mill (A partnership business)" are there whereas in Ext. D(2) the words are "Description of the properties sold". In Ext. G which is the writ for delivery of possession the words "List of properties of the New Rice Mill (A partnership business)" are also there but they are above the words "Given under my hand and seal. ..." Ordinarily the words "List of properties....." should have been below "Given under my hand......" This makes one suspicious and think that the words "List of properties or the New Rice Mill (A partnership business)" were subsequently interpolated in Ext. G as well as Exts. D and D(1). No suggestion that these words are interpolations in the aforesaid exhibits, however, was made to any witness of the appellant and in the circumstances I shall proceed on the assumption that these words were there from the very beginning but they only show that the person who purchased the properties and the Income-Tax Department, the certificate holder, thought that the properties belonged to the partnership business. That by itself would not make them properties of the partnership if in fact they were not so and the fact that plot no. 181 and the house thereon were in the name of defendant no. That by itself would not make them properties of the partnership if in fact they were not so and the fact that plot no. 181 and the house thereon were in the name of defendant no. 2 Durga Prasad and not in the name of the Rice Mill prima facie shows that they were properties of Durga Prasad and not of the partnership business. The other circumstances appearing from the evidence on the record also lead to the same conclusion. When execution was levied by the plaintiff it was Durga Prasad alone who filed an objection to the valuation and it was he alone who also filed the application under Order 1 Rule 90 of the Code of Civil Procedure for setting aside the sale. Attachment before judgment in the money suit was effected on 21st of December, 1951 so far plot no. 181 is concerned (vide Exts. 1 and 2). No partner of the Mill opposed to the attachment at that stage or filed any claim case under Order XXI Rule 58 of the Code of Civil Procedure during the pendency of the execution case. After application under Order XXI Rule 90 of the Code of Civil Procedure was dismissed it were the son and wife of Durga Prasad who obstructed the delivery of possession leading to a proceeding under Order XXI Rule 97 of the Code of Civil Procedure and it was the wife alone who instituted a suit under Order XXI Rule 103 of the Code of Civil Procedure. If any partner of the Rice Mill would have any interest in this plot they must have appeared before court and raised objections. In the circumstances it can safely be held that the plaintiff has discharged the initial onus which lay on him to prove the antecedent title of his predecessor-in-interest as well as his own title. 8. Four witnesses were examined on behalf of the plaintiff. Three of them, however, namely, P.Ws. 2, 3, and 4 are formal witnesses who have proved some documents. The plaintiff himself as P.W. 1 has stated that the properties which he purchased belonged exclusively to Durga Prasad and they did not belong to the partners of the Mill. Five witnesses were examined on behalf of the appellant. D.W. 1 has stated that he scribed the Kirayanama by daughter-in-law and daughter of defendant no. The plaintiff himself as P.W. 1 has stated that the properties which he purchased belonged exclusively to Durga Prasad and they did not belong to the partners of the Mill. Five witnesses were examined on behalf of the appellant. D.W. 1 has stated that he scribed the Kirayanama by daughter-in-law and daughter of defendant no. 2 in favour of the appellant in respect of this house and has proved two choukidari receipts, Exts. A and A(1). D.W. 2 has proved some rent receipts, Ext. B series, standing in the name of the appellant. He has also proved receipt (Ext. C) showing deposit of money by the appellant in the certificate case. It is not in dispute that the properties were auction sold in the name of appellant. Of course, the fact that he came in possession after the auction sale is in dispute. But even if it is assumed that he did come in possession that would not make any difference if it is found that the properties exclusively belonged to Durga Prasad and not to the partnership business inasmuch as in that case he would acquire no title as against the plaintiff who is a prior purchaser. Therefore, these documents are not of much importance. D.W. 4 is a witness of delivery of possession in favour of the appellant. He has further said that the house belonged to the Mill and it was not the exclusive property of Durga Prasad. He has, however, admitted that he had no concern with the Mill or with the business of Durga Prasad. Therefore, his evidence that the house belonged to the Mill and not exclusively to Durga Prasad cannot be relied on D.W. 5 is defendant himself. He too has said that the properties which he purchased at the auction belonged to all the partners of the Mill. However, in cross-examination he admitted that he had not seen any paper as to who had title to that property. Thus apart from the fact that he is a highly interested witness there is nothing in his evidence to show that plot no. 181 and the house thereon belonged to all the partners of the Mill and not exclusively to Durga Prasad. It was D.W. 3 who has got his house close to plot no. 181 on whose evidence appellant's counsel placed great reliance. 181 and the house thereon belonged to all the partners of the Mill and not exclusively to Durga Prasad. It was D.W. 3 who has got his house close to plot no. 181 on whose evidence appellant's counsel placed great reliance. His evidence as translated in the paper book reads: "Delivery of possession over the house in which there is the mill took place on behalf of Jiwachh Yadav in my presence." P.W. 1 in his evidence has stated that the land on which the Mill existed belonged to the Mill and that there were three partners in the Mill and his decree was only against Durga Prasad not in the capacity of a partner of the Mill and not against the other two partners of the Mill. Learned counsel for the appellant contended that as according to D.W.3 the Mill is located in the disputed house and as P.W. 1 has admitted that the land on which the Mill exists belonged to the Mill, it should be held that no title did pass to the plaintiff-respondent by virtue of his purchase and it is the appellant who has got title to plot no.181 and the house thereon. The deposition in the court below was recorded in Hindi and the expression used by the witness was "Mill wale Makan" and not "Makan jis men Mill hai." "Mill wale makan" may mean the house in the compound where the Mill was also situated and, therefore it does not follow necessarily from his evidence that the machineries of the Mill are located in the house itself. Ext. 3 is the petition which was filed by Durga Prasad in the execution case objecting to the valuation given by the plaintiff. In Paragraph 3 of that petition he stated that in the New Rice Mill he had interest to the extent of only three annas. In Paragraph 5 he said that the area of the land in which the Mill, out-house, godown and other quarters were located was about 8 bighas. In Paragraph 10 he stated that his house and bari stood in about 12 kathas. Thus from Ext. 3 it is manifest that the Mill was not located in the residential house of Durga Prasad which was on plot no. 181 but it had separate existence and had out-houses, godown and other quarters of its own and that the house on plot no. Thus from Ext. 3 it is manifest that the Mill was not located in the residential house of Durga Prasad which was on plot no. 181 but it had separate existence and had out-houses, godown and other quarters of its own and that the house on plot no. 181 was not of the Mill but of Durga Prasad alone. It was contended by learned counsel for the appellant that statement of Durga Prasad that the house was his exclusive property was in his favour and may not be admissible in evidence against the appellant. That may be so. But even if this petition (Ext. 3) is kept out of consideration the other evidence on the record is sufficient to prove that plot no. 181 and the house on it exclusively belonged to Durga Prasad defendant no. 2, and not to the mill and its partners. It may be stated here that learned counsel for the appellant conceded that his client could not claim any title to other items of the properties which were subject-matter of the suit. In the circumstances, on the evidence on the record, the court below appears to have rightly come to the conclusion that the plaintiff has proved his title to the property which is subject-matter of the suit and defendants first party, i.e. the appellant has got no title to it. 9. There appears no substance as well in the contention of Mr. Jha that the suit as framed under Order XXI Rule 103, Civil Procedure Code was not maintainable, inasmuch as, the application under Order XXI Rule 97 of the Code of Civil Procedure was barred by limitation. As it appears from Ext. K, the application under Order XXI Rule 97, Civil Procedure Code was not dismissed only on the ground that it was barred by limitation, but also on the ground that there was no merit in it and on a finding in favour of the appellant before us. If the court which dealt with that application would have refused to go into the merits of the case on the ground that the application was barred, of course there would have been substance in the contention as to the maintainability of the suit. If the court which dealt with that application would have refused to go into the merits of the case on the ground that the application was barred, of course there would have been substance in the contention as to the maintainability of the suit. The rule that when an application under Rules 97 and 100 of Order XXI of the Code of Civil Procedure is dismissed as time barred and there is no adjudication of the claim, a suit under Rule 103 of the same order is not maintainable, is founded on the words "where the Court is satisfied" in Rules 98, 99 and 101 of that order and of Rule 103 that a person may institute a suit only when an order under Rules 98, 99 or 101 has been made against him. Rule 103 further provides that subject to the result of the suit so instituted, the order made under Rules 98, 99 or 101 shall be conclusive. Thus, where there is an adjudication of the claim and an order is passed under the aforesaid three rules and the person against whom the order is made does not institute a suit under Rule 103 within one year (as provided by Article 11-A of the Indian Limitation Act of 1908 and Article 98 of the Limitation Act of 1963) of the date of the order, the order becomes conclusive against him and his further remedy is barred. In the instant case, therefore, as there was an adjudication against the plaintiff-respondent and in favour of the appellant, the suit of the plaintiff which is admittedly within one year from the date of the order (Ext. K) is maintainable. Learned counsel for the appellant relied on the fallowing three decisions in support of his aforesaid contention:- (i) (3) Beni Prasad V. Lachhuman Prasad (I.L.R. IV Allahabad 131); (ii) (4) Bahadur Khan V. Bari Tala and another (A.I.R. 1940 Allahabad 525); and (iii) (5) Kotumal Khemchand V. Gur Ashram (A.I.R. 1947 Sindh 118). In Beni Prasad's case as well as in Kotumal Khemchand's case it appears that there was no adjudication of the claim at all and the application was rejected as time barred. In Beni Prasad's case as well as in Kotumal Khemchand's case it appears that there was no adjudication of the claim at all and the application was rejected as time barred. In Bahadur Khan's case, there was an adjudication on the merit, but that was in favour of the person making the application under Order XXI Rule 97, Code of the Civil Procedure and thus the finding on the point was mere obiter dictum, inasmuch as, the application was dismissed as time barred. Therefore, in none of these cases there was an adverse order on merit against the person making the application. 10. In (6) Madan Mohan and others V. Hari Anandi Lal (A.I.R. 1959 Bombay 269), Mudholkar, J., as he then was, appears to have taken a view which does support the respondent and shows that there is no substance in the aforesaid contention of appellant's counsel. The facts of that case were that after the sale was confirmed and sale certificate was granted to the decree-holder purchasers, they applied for delivery of possession on 15.4.1946 and a warrant for possession was issued. The execution of the warrant was resisted by the respondents before the High Court on 17.10.1946. The decree-holders did not make any application under Order XXI Rule 97 of the Code of Civil Procedure within 30 days of the date of the resistance, but instead applied for a fresh warrant of possession. Such a warrant was issued in their favour and they attempted to execute it. They were again resisted by the respondents from obtaining possession on 10.4.19.47. Thereafter they made an application under Order XXI, Rule 97 of the Code on 21.4.1947. This application was dismissed by the executing court on 15.12.47 on grounds; that the application was barred by time as it had not been made within 30 days of the initial resistance to the taking of possession made by the respondents on 11.10.1946 and that the respondents were not the judgment-debtors of the decree-holders. Decree-holders appealed to the High Court which was dismissed on 14.3.1951 on the same grounds as given by the executing court during the pendency of the appeal, the decree-holders had instituted a suit under order XXI Rule 103 of the Code of Civil Procedure challenging the order under Order XXI Rule 97 of the Code of Civil Procedure. Decree-holders appealed to the High Court which was dismissed on 14.3.1951 on the same grounds as given by the executing court during the pendency of the appeal, the decree-holders had instituted a suit under order XXI Rule 103 of the Code of Civil Procedure challenging the order under Order XXI Rule 97 of the Code of Civil Procedure. They lost the suit and preferred an appeal which was heard by Mudholker, J. rejecting the contention of respondents counsel that the suit was barred by limitation, Mudholkar, J., observed with reference to Rule 103 : "All that this rule contemplates is that an order should have been made under Rule 98, Rule 99 or Rule 101. It does not say that the application invoking the powers of the court must be made within limitation. Again, what this rule contemplates is not merely correction of an error in an order passed under one of these rules, but establishment of the decree-holder's right to the possession of property which he had sought but could not obtain in execution. Limitation for such a suit under this rule is prescribed by Article 11A of the Limitation Act and the starting point of limitation, as will be clear from Column 3 of that Article, is the date of the order where a suit is instituted within one year of that date, then of course, it will have to be treated as being within time. Now, bearing in mind the fact that the omission to bring a suit within one year of the date of the order would conclude the decree-holder who has obtained a good title from asserting that title, it would be clear that the law must be strictly construed. The argument of Shri Tare in effect amounts to this that the starting point of limitation should be the date of the order which would have been made by the court upon an application under Order XXI, Rule 97 made within 30 days of the first obstruction. I see no warrant in any of the relevant provisions of the Code of Civil Procedure or of the Limitation Act to justify such a construction. I see no warrant in any of the relevant provisions of the Code of Civil Procedure or of the Limitation Act to justify such a construction. For these reasons I hold that the suit is within time." It may be stated that so far the Bombay High Court is concerned, it has consistently taken the view that an application under Order XXI Rule 97, Civil Procedure Code is maintainable only as against the first resistance and not against each subsequent resistance. 11. It was contended by Mr. Jha, challenging the correctness of the decision in Madan Mohan's case, that if such a view is taken, the plaintiff of a suit under Order XXI, Rule 103, Civil Procedure Code might circumvent the law of limitation by making an application under Order XXI Rule 97 of the Code and getting it dismissed and then instituting his suit even though his remedy was barred. He does not appear to be correct because if such a suit is beyond 12 years of his purchase, then it will be dismissed even though filed within one year from the date of the order challenged, because the plaintiff must prove before a decree is passed in his favour that he has got a subsisting right of present possession of the property in dispute. Further contention of Mr. Jha was that once it is held that an application under Order XXI Rule 97 of the Code is barred by time, any order passed by the court dealing with such application on merits should be terated as non-existent, inasmuch as, the court has got no jurisdiction to adjudicate on the claims of the parties on an application which is barred. He relied on certain observations of the Supreme Court in (7) Pandurang Dhondhi Chougule and others V. Maruti Hari Yadhav and others (A.I.R. 1966 S.C. 153), that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings and that a finding on these pleas in favour of the party raising them would oust the jurisdiction of the court. These observations were made with reference to Section 115 of the Code of Civil Procedure. These observations were made with reference to Section 115 of the Code of Civil Procedure. It was pointed out by the Supreme Court in the case of (8) Razia Begum V. Sahebzadi Anwar Begum and others (A.I.R 1958 S.C. 880), that the expression "jurisdiction" in Section 115 of the Code means power of the subordinate courts in contradistinction to their inherent jurisdiction. It cannot, therefore, be said that once it is held that an application under Order XXI Rule 97 is barred, a finding on the claims of the parties will not be binding on the party against whom it is given and he can ignore it. Thus, the observations made by the Supreme Court in Pandurang Dhondhi's case are of no help to the appellant and, in my opinion, the court below has rightly held that the suit as framed under Order XXI Rule 103 of the Code of Civil Procedure was maintainable. 12. Mr. Jha conceded that the suit being within 12 years of the purchase by the plaintiff, if he acquired a valid title by the purchase, he had a subsisting right to possession on the date of the suit, but argued that he could not get the relief claimed for, in a suit under Order XXI Rule 103, Civil Procedure Code, on a fixed court-fee and must pay advalorem court-fee. It was held by a Full Bench of this court in (9) Ramkhelawan Sahu V. Bir Surendra Sahi (I.L.R. XVI Patna 766), that a defendant should not be allowed to agitate the question of court-fee before superior courts, inasmuch as, the question of payment of court-fee concerns only the plaintiff and the State. Such a contention, therefore, is not maintainable at the instance of the appellant. Mr. Jha further pointed out that in the plaint the date of cause of action was mentioned as 20th of July, 1961, the date on which the order (Ext. K) was passed and as such, the suit cannot be treated as a general suit. It is well settled that cause of action does not mean only the last fact in the chain which leads to the filing of the suit, but it is a bundle of facts from the beginning to end resulting in the institution of the suit. K) was passed and as such, the suit cannot be treated as a general suit. It is well settled that cause of action does not mean only the last fact in the chain which leads to the filing of the suit, but it is a bundle of facts from the beginning to end resulting in the institution of the suit. Merely because the plaintiff mentions a wrong date of the cause of action in the penultimate paragraph of the plaint, it cannot be held that the suit is not maintainable when all the relevant facts are stated in the body of the plaint. However, in view of the finding recorded above that the suit under Order XXI Rule 103 is maintanable and not barred by time, these contentions do not require consideration. 13. In the result, the appeal fails and is dismissed with costs. Appeal dismissed ANWAR AHMAD, J. I agree and have nothing to add.