The court established that suits filed under Sec. 106 of the Bihar Tenancy Act are covered by the provisions of the Limitation Act, and the authority does not have the power to condone the delay in filing the suit beyond the period of limitation.

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 Sec. 106 of the Act as Sec. 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 Sec. 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 103-A 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 Sec. 106 of the Act challenging the entries made in the record of rights. On 13-7-2001 he filed an application under Sec. 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 Sec. 5 of the Limitation Act will not apply with regard to suits filed under Sec. 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 Sec. 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 Sec. 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 Sec. 106 of the Act has power to condone the delay by taking recourse to Sec. 5 of the Limitation Act.

7. Record of rights are prepared under Part I of Chapter X of the Act. Under Sec. 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. Sec. 102 mentions the particulars which are to be recorded. Thereafter a draft record of rights is prepared which is published under Sec. 103-A of the Act and after disposal of the objections which are invited a fi