Chandra Nath Mukherjee vs Tusharika Devi

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for recovery of arrears of rent, cesses and damages etc., in respect of a Seputni, for the years 1360 and 1361 B.S. The claim was laid in the plaint at Rs. 19,793-9-9 p. under the following heads:

Year Rent Cess Education Cess Total Payment

1360 B.S. Rs. 12,150 Rs. 966-8-10 Rs. 1,398-0-7 Rs. 14,514-8-17 Rs. 10,399-13-5

1361 B.S. Rs. 12,150 Rs. 966-8-10 Rs. 1,398-0-7 . Rs. 14,514-8-17 Rs. Nil

Balance

Rs. 4,114-11-12

Rs. 14,514-8-17

Total : Rs. 18,629-4-9

Damages at 6 1/4 ''o Rs. 1,164-5-0

Rs. 19,793-9-9

The material defence was that the Plaintiffs'' suit was not maintainable in view of Sections 15 and 16 of the Bengal Tenancy Act, as they did not get their names mutated in the landlord''s sherista in due time according to law and further, that it was barred by limitation.

Both the above defences were overruled by the learned Subordinate Judge and the Plaintiffs'' suit was decreed. Hence this appeal by the Defendant.

The defence, based on Sections 15 and 16 of the Bengal Tenancy Act, was rejected by the learned Subordinate Judge upon the view that it was barred by res judicata by reason of the decision of the Supreme Court Chandranath Mukherjee Vs. Tusharika Debi and Others, in the previous suit between the parties (R.S. No. 3 of. 1949) and the plea of limitation was overruled by him upon the ground that the kabuliyats [Exs. 1 and 1 (a)], under which the disputed Seputni came into existence in 1873 and 1874, being registered documents, limitation for recovery of rents would be six years under Article 116 of the Indian Limitation Act and the instant suit, filed on April 12, 1958, would be well within time.

The Appellant contends that, on both the above two points, the learned Subordinate Judge came to a wrong conclusion and the validity of this contention falls to be judged in the present appeal.

So far as Sections 15 and 16 of the Bengal Tenancy Act are concerned, we are clearly of the opinion that the learned Subordinate Judge was right in rejecting the defence plea of bar under those sections on the ground of res judicata. Admittedly, there was a previous suit (R.S. No. 3 of 1949) between the parties for rents etc. of this very Seputni for a preceding period (1352 to 1355 B.S.) in which the same plea was taken by the present Defendant. That plea, however, was eventually overruled by the Supreme Court [vide judgment Ex. 4, reported in AIR Supra] upon the ground that the ''time provision'' in s.15 of the Bengal Tenancy Act was directory and accordingly, the Plaintiffs having mutated their names in the landlord''s sherista, though beyond six months, as mentioned therein, must be held to have substantially complied with the said provisions and such substantial compliance was enough for purposes of the said section (Section 15) and of the dependant penal section (Section 16), which follows it and which, on its own terms, operates as a bar to the landlord''s right to recover rents by suit only so long as the duties u/s 15 have not been performed. This decision clearly operates as res judicata between the parties on this particular question, namely, as to the Plaintiffs'' right to recover rents of the disputed Seputni by suit and the mere fact that the Plaintiffs Nos. 2 and 3 were minors at the time of the said previous proceeding but have attained majority since would not affect the position. The two proceedings would still be between the same parties and the fact that the said two Plaintiffs were impleaded as minors represented by their guardian, in the earlier proceeding and have brought the present suit as major would not affect that character. In both the suits, the Plaintiffs were the same as the change of status of Plaintiffs Nos. 2 and 3 by reason of attainment of majority does not make them new or different parties. This change, again, is immaterial, so far as Sections 15 and 16 of the Bengal Tenancy Act are concerned, as it involves no new succession and accordingly, if the plea of bar under the above sections was not available in the previous suit as held by the Supreme Court, it cannot be available now merely because of the Plaintiffs Nos. 2 and 3''s attainment of majority, as aforesaid. The matter may also be looked at from another point of view. Admittedly, the Plaintiff''s names were recorded in the landlord''s sherista though beyond the period of six months from the opening of succession on the death of their predecessor. The Supreme Court, however, has held, as seen above, that such late recording or delayed mutation also would be enough for the above two sections. That view of law is binding on us and as the Plaintiffs Nos. 2 and 3''s attainment of majority does not affect the above recording of their names, it must be held that the Plaintiffs'' names have been duly, recorded in the landlord''s sherista under and/or for purposes of Sections 15 and 16 of the Bengal Tenancy Act and the defence plea to the contrary must fail.

On the other point, namely, limitation, the Appellant has a stronger case, but that also must fail in the ultimate analysis and in any event, it can give no relief to the Appellant in the, instant appeal. No doubt, on the present state of the authorities, it may be taken as well-settled or, at least, as the predominant view, that a suit for Putni rent is governed by Article 2 of Schedule III of the Bengal Tenancy Act. The fact that the Putni lease in the particular case is under a registered document does not affect that position. The apparently contrary view in some of the decisions hardly counts in the face of overwhelming authorities in support of the above proposition. Moreover, those few decisions are distinguishable on their own facts and explicable so as not to affect the above view, deducible from and firmly established by the ruling authorities. Reference in this connection may be made to Burna Moyi Dassee v. Burna Moyi Chowdhurani (1895) ILR 23 Cal. 191, Moulvi Wazed Ali Khan Panee v. Brojendra Kumar Bandopadhaya (1932) 36 C.W.N. 833, Uday Chand Mahatab v. Dibakar Sen (1949) 54 C.W.N. 307 and Uday Chand Mahatab v. Tirtha Nath Basu ILR (1951) 2 Cal. 232 and also to Abdul Gaffar and Others Vs. Pirthvi Chand Lal Choudhary and Others, , which are direct decisions on the point and to the discussion of the apparently contrary decisions in Humayun Reza Chaudhury and Others Vs. Tarini Charan Tewari and Others, and Munshi Alauddin Ahammed Choudhury v. Tomizuddin Ahammed (1937) 41 C.W.N. 1001; in Uday Chand Mahatab v. Dibakar Sen (1949) 54 C.W.N. 307, Uday Chand Mahatab v. Tirtha Nath Basu ILR (1951) 2 Cal. 232 and Abdul Gaffar and Others Vs. Pirthvi Chand Lal Choudhary and Others, which represent some of ruling authorities. The reasonings also have been clearly stated and sufficiently explained in the said ruling authorities and they are well supported on principle and the relevant statutes. Section 29 of the Indian Limitation Act saves the operation of corresponding provisions of special or local laws. The Bengal Tenancy Act is one or an instance of such special or local laws. Article 2 of Schedule III of the latter Act thus remains unaffected by any provision of the Indian Limitation Act. By virtue of Section 195(e), again, of the Bengal Tenancy Act, the said Article applies to Putnis, it not being inconsistent with any provision of the Putni Regulation and it being well-settled that, where the Putni Regulation is silent, the Bengal Tenancy Act will apply to Putnis vide Durga Prosad Bundopadhaya v. Brindabun Roy (1892) ILR 19 Cal. 504, Uday Chand Mahatab v. Dibakar Sen Supra, Shaikh Abdul Gaffar and Others Vs. F.B. Downing and Others, . That Article, again, is general in its application and applies irrespective of the fact that the document of lease in a particular case is registered or unregistered; in other words, such registration does not affect or exclude the operation of that Article. It follows then that the said Article will apply to all suits for Putni rent irrespective of the registration or non-registration of the Putni lease and will exclude the application of Article 116 of the Indian Limitation Act to such cases as much as of Articles 110 and 115 of the said Act.

If now, on the above view, the above Article applies to the instant case, the claim, so far as 1360 B.S. is concerned, would be prima facie time-barred, as the end of the said agricultural year 1360 B.S., which corresponds to April 13, 1954 and which would be the starting point of limitation under the said Article, would be beyond 3 years of the date of institution (April 12, 1958) of the present suit and to that extent, the Appellant would apparently be entitled to succeed in the present appeal. Such relief, however, would not be available to the Appellant on two grounds:

(i) That, inspite of what has been said above, Article 2 of Schedule III of the Bengal Tenancy Act would not apply to the present case or govern limitation here. This is because of the West Bengal Estates Acquisition Act, under which (vide Section 5) the Appellant''s and the Respondents'' interests in the disputed property have vested in the State with effect from April 15, 1955, with the result that, at the date of institution of the present suit, namely, on April 12, 1958, there was no relationship of landlord and tenant between the parties herein in respect of the Seputni in suit and the Respondents were not the Appellant''s landlords at that date in respect of the rent claim in suit and in that state of things, on the authority of the two decisions of this Court, in In Re: Gopaldas Aurora, and Durgadasi Dasi v. Krisna Behari Biswas (1955) 60 C.W.N. 676 the special period of limitation (Article 2, Schedule III of the Bengal Tenancy Act) would not apply and this case would be governed by the general law, that is, by Article 116 of the Indian Limitation Act, the Putni in suit having, as stated above, been created by or under registered documents [Exs. 1 and 1(a)]. Under that Article, as already seen, no part of the plain tiff''s claim would be barred. And (ii) that, even if Article 2 of Schedule III of the Bengal Tenancy Act applies here to bar the Plaintiffs'' claim for 1360 B.S., we would allow the Plaintiffs'' interest at the rate of 4% per annum on the remainder of their principal claim (Rs. 14,574-8-17) from the institution of the suit up till realisation subject, of course, to the limit because of the absence of any cross-objection on the part of the Plaintiffs-Respondents that the total amount to be decreed would not exceed the decree of the learned trial Judge and as, on such calculation up till this day, the amount to be otherwise disallowed for the barred claim of 1360 B.S. would be covered up by such interest, the decree of the learned Subordinate Judge would remain undisturbed.

In the above view, we would dismiss this appeal and as to costs, we would direct that, in the circumstances of this case, there will be no order for costs in this Court, but the Plaintiffs would get full costs in the trial Court.

D. Basu, J.

I agree.