Gouri Bala Choudhury vs Kusum Kumari Dasi

Mookerjee, J.—This Rule is. directed against a decision of the learned Mumsif, Third Court, Midnapore, in the exercise of his Small Cause Court powers. The Petitioner was. the Plaintiff in the suit before the learned Munsif which was for realisation of his dues, u/s 22(2) of the Bengal Tenancy Act from the Defendant. The claim in the suit was for the years 1359 to 1361 B.S., for a fair and equitable sura for the use and occupation of the land in suit by the Defendant. The suit was filed some time in the year 1805 B.S. The learned Munsif was of the opinion that the only defence was. to the effect that, the Plaintiff''s claim was barred by limitation. This plea was accepted by the learned Munsif upon the view that the suit was governed by Article 115 of the Indian Limitation Act and he held that as. no part of the claim in question was within three years of the institution of the suit, the Plaintiff''s entire claim was time-barred. In this view the learned Munsif dismissed the Plaintiff''s suit.

Before me, Mr. Panda, who appears for the Plaintiff Petitioner has contended that the above view of the learned Munsif on the question of limitation is erroneous and the suit should be held governed by the residuary Article 120 of the Indian Limitation Act and the Plaintiff''s claim. if within 6 years of the suit, that is, within the period, as provided in the said article should be decreed and no part of it should be held barred by limitation.

In support of his contention, Mr. Panda relied on the decision of Mr. Justice M.C. Ghose in the case of Suresh Chandra Nag v. Kumud Kama Nag and Ors. (1937) 41 C.W.N. 1090 . That decision exactly covers the present question and it in based on certain. earlier decisions of this Court which, according to the said learned Judge, laid down the principle applicable to these cases.

In my opinion, the view, taken in Suresh Chandra Nag''s case on this question of limitation, is right although. I would put it on the short ground that the liability in cases like the present, or in regard to claims like the present being under the statute, that is, a statutory liability, there is no specific article of the Indian Limitation Act, applicable to such eases or specifically providing for the same and in the absence of any such specific article, the case should be governed by the residuary Article 120 of the Indian Limitation Act [ vide in this connection. The Secretary of State for India in Council v; Guru Proshad Dhur ILR (1892) Cal. 51 , 57, see also Sm. Ramkumari Devi and Others Vs. Hari Das Mukherji and Others, . That the liability in question here is statutory cannot be disputed. Indeed, the status of'' a co-sharer landlord, purchasing the tenant''s property, and also his liablity to pay a fair and equitable sum for occupation of the purchased land to the other co-sharer landlords is expressly made and created by the statute, namely, Section 22(2) of the Bengal Tenancy Act. It. is clearly then a case of statutory liability and, accordingly, in the above view, the case would he governed by Article 120 of the Indian Limitation Act.

In the above view, I would make this Rule absolute and. as the suit was dismissed solely on the ground of limitation, which view of the learned Munsif I have already shown and held to be incorrect, the Plaintiff''s suit will be decreed with costs in the trial court.

There will, however, be no order as to costs in this Court or so far as this Rule is concerned.