Kameshwar Singh Bahadur vs Sri Mahadeojee Deota Asthan Dadarwala Temple and Others

Harries, C.J.—This is a plaintiff''s appeal from a decision of a single Judge dismissing a second appeal from concurrent decrees of the Courts below. The plaintiff was the landlord, whereas the defendant-respondents were deities sued through a number of she baits. The suit giving rise to the appeal was filed for the recovery of double the amount of case due for the years 1343, 1344, 1349 and 1346 F. The tenure in question was a rent-free tenure, and the claim for double cess was made by the landlord u/s 58, Bengal Cess Act (Act 9 of 1880). The learned Munsif and the lower appellate Court decreed the plaintiff''s claim for double the amount of cess for the years 1344 to 1346 F., but held that the claim for the year 1343 F. was barred by limitation. The Courts below were of opinion that the claim for double the amount of cess was a claim for a penalty and was governed by the ordinary rule of limitation, namely, three years.

The plaintiff preferred a second appeal which was heard by a learned single Judge. He felt himself bound by a decision of this Court Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, , and held in accordance with that case that the claim for double the amount of cess for the year 1343 F. was barred by limitation. The learned Judge appears to have had some doubt as to the correctness of this Bench decision, but he was bound to follow it and loyally did so. He, however, gave leave to appeal under the Letters Patent and the case came before a Letters Patent Bench, Before that Bench it was contended that the case in Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, was wrongly decided. The Letters Patent Bench was bound either to follow that decision or refer the matter for the constitution of a larger Bench. The matter was so referred, and this Bench has been constituted to hear this case and to consider whether or not the earlier case of this Court to which I have referred was rightly decided. Liability to pay double the cess for the years in question arose u/s 58, Cess Act, which is in these terms:

When an instalment of the cess due on any rent-free land is not paid to the holder of the estate or tenure to whom it is due within one month of the date on which such instalment is payable, such holder shall be entitled to recover a sum equal to double the amount of such instalment due to him under Sections 56 and 57 with interest on such sum calculated at the rate of 12� per centum per annum from the date on which such instalment was payable, and with all costs of suit....

It is to be observed that by an amendment in the year 1939 the rate of interest has been reduced from 12� per cent, to 6� per cent. Before the Courts below it was conceded that if the plaintiff''s claim had been merely for cess due in the year 1343 F., a period of four years'' limitation would have been applicable and that the claim would have been within time. The argument proceeded on the basis that Section 47, Cess Act, applied to the case. That section provides:

Every holder of an estate or tenure to whom any sum may be payable under the provisions of this Act may recover the same with interest at the rate of 12� per centum per annum (now 6� per centum) in the same manner and under the same penalties as if the same were arrears of rent due to him.

The arguments which found favour in the Courts below were that had the claim been a pure claim for arrear of cess Section 47 would have applied, and the period of limitation for rent would have applied, namely four years, under Article 2, Schedule 3, Bihar Tenancy Act.

Further, it was urged that the claim was not a claim for a sum which was payable under the provisions of the Act as cess was. That being so, it was contended that it was a purely money claim not governed by the provisions of the Act, and, therefore, the ordinary period of limitation of three years would apply. The Courts below relied upon the decision in Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, where a distinction was drawn by the Bench between what was recoverable under the Act and what was payable. The facts of that case are precisely similar to the facts of the present case. The landlords sued to recover double the amount of cess u/s 58, Cess Act, and it was held that the period of limitation was not four years but three years, because Section 47, Cess Act, had no application. Ross, J. who decided the case, drew the distinction which I have stated between a sum payable under the Act and a sum recoverable under the Act. At p. 120 he observed:

It is contended that this is a suit for money and only the arrears of three years and not the arrears of four years are recoverable. Now Section 47, Cess Act, provides that every holder of an estate or tenure to whom any sum may be payable under the provisions of this Act may recover the same with interest as if the same were an arrear of rent; and Section 41 states what sums are payable under the Act. The present suit has been brought under the provisions of Section 58 which does not deal with the sums payable under the Act, but with a penal sum which is recoverable in default of payment of the instalment payable under the Act. It cannot be said that this penalty is payable. The penalty is only recoverable; and, in my opinion, the plaintiff had the choice to bring a suit either for four years'' arrears of cess with interest, claimed as if it was an arrear of rent, or for the penal amount provided by Section 58, as an ordinary money claim.

It is to be observed that in this judgment of Boss, J. no reference whatsoever is made to Section 64A, Cess Act. Section 58, which gives the landlord a right in certain circumstances to recover double the amount of the cess, is to be found in Chap. IV of the Act which deals with valuation and assessment of lands held rent-free and payment and recovery of cess in respect thereof. The liability to pay cess is imposed on the holder of rent-free lands by Section 56, and, as I have said, the liability to pay double the cess is created by Section 58.

Section 64A deals with the recovery of all sums due under Chap. IV, and it has been contended by the appellant in this case that double the cess which may be recovered u/s 58 is a sum due under the provisions of Chap. IV and, therefore, recoverable u/s 64A. The relevant portion of Section 64A is in these terms:

All sums due to the holder of any estate or tenure under the provisions of this chapter, in respect of any land held rent-free, may be recovered by such holder from any owner or holder of such rent-free land, or from any occupier of the same, by any means and any process by which the amount might be recovered if it were due on account of rent of a transferable tenure or holding, and subject to the same rules as to limitation....

The appellant''s argument is that anything made recoverable by Section 58 is a sum due from the tenure-holder to the owner of the land under the provisions of Chap. IV and is, therefore, recoverable u/s 64A, and the period of limitation for any such suit is expressly stated in the section to be the period of limitation for a rent suit, namely, four years. As I have said, this argument does not appear to have been addressed to the Court in Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, , and Section 64A is nowhere referred to in the judgment.

On behalf of the respondents it is urged that what is made recoverable u/s 58 is not a sum due to the holder of any estate or tenure under the provisions of Chap. IV. Mr. Lakshmi Kant Jha who appeared for the respondents attempts to draw the same distinction between sums due and sums payable as was made in Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, . He also attempts to draw the same distinction between the phrases "sums due" and "sums recoverable," because it is to be observed that the words in Section 47 of the Act are "any sum payable," whereas in Section 64A the phrase is any "sum due". Whatever be the merits of the distinction drawn by Ross, J. between sums which are payable and sums which are recoverable, such cannot affect the decision of the present case. If sums recoverable u/s 58 can be said to be sums due to the landlord, then Section 64A would clearly apply to this case and the period of limitation would be four years.

It appears to me that when a sum is made recoverable by Section 58 in certain circumstances the tenure-holder becomes liable to the landlord to pay such an amount. A tenure-holder who is not liable to pay an amount to his landlord cannot have the same recovered from him at the instance of the landlord by means of a suit. Sums can only be recovered from a person if the latter is liable to pay such sums, and if a person is liable to pay a sum it appears to me that such a sum is due from him. In other words, if the holder of an estate can recover double the cess from a tenure-holder who is in default, then when such a default occurs the tenure-holder is liable to pay double the cess, and that is a sum due from him to the landlord. Mr, Lakshmi Kanta Jha urged that before a sum can be said to be due it must be in the nature of a liquidated debt. Double the cess on a holding is a liquidated amount, and no difficulty arises on that score. Mr. Lakshmi Kanta Jha, however, urged that double the amount of cess could not be said to be due from the tenant, because the holder of the estate had an option either to sue for recovery of the cess alone or to sue for recovery of double the amount of cess. The fact that the holder of the estate has an option in the matter cannot affect the question whether double the amount of cess is due from the tenure-holder. A creditor has always an option to sue for the whole debt or part of the debt. Of course, if he sues only for part of the debt, he may be barred from bringing further proceedings for the remainder. The fact that he has such an option in no way makes the sum sought to be recovered a sum not due from the debtor. In my judgment, any sum which is recoverable is a sum which is due from the person from whom it is sought to be recovered. It is true that in Section 58 itself the word ''due'' is used and also the word ''recover.'' The instalment of cess is described as being due, whereas the double amount is described as being recoverable. It may be that what is recoverable is not due as the result of any express words in the statute, but it is certainly due by necessary implication; and in my judgment what is recoverable under S, 58 is a sum due under the provisions of Ch. 4, and, therefore, Section 64A applies and the period of limitation for such a suit is four years and not three years.

Mr. Lakshmi Kanta Jha whilst arguing that Section 64A could not apply to claims for double the amount of cess, had to concede that it would also not apply to interest on a claim for cess, because nowhere in Ch. 4 is interest said to be due. It is said to be recoverable in Section 58, and, therefore, Mr. Lakshmi Kanta Jha had to concede that even interest could not be recovered u/s 64A. He, however, contended that interest could be recovered u/s 47 and double the cess in an ordinary money suit. It would, indeed,'' be strange if the Legislature intended that the three sums made recoverable under the provisions of Ch. 4, should be recovered in three different ways. The chapter appears to be a self-contained chapter dealing with the rights and obligations of the parties in respect of a rent free tenure or holding. In my view, the Legislature intended that all sums recoverable in respect of such holdings should be recoverable u/s 64A and that the four years'' period of limitation would apply. Section 47 by express terms applies to all sums made payable under the provisions of the Act; but it has to be remembered that Section 64A was subsequently introduced into the Act. The effect of the introduction of Section 64A has been that all claims under Ch. 4 now fall u/s 64A and not u/s 47 which originally covered claims to all sums payable under the Act. In my judgment, the claim to double cess is a claim to something due from the tenure-holder under the provisions of a section in Ch. 4 of the Act, and clearly Section 64A applies and the period of limitation is four years. As the case in Bhubaneshwari Kuer Vs. Gopal Saran Narayan Singh, had decided that in such a case the period of limitation was three years, it was in my view, wrongly decided and must be overruled.

The only other argument addressed to us by Mr. Jha was that Section 64A did not apply to suits to recover sums due but applied only to proceedings subsequent to a decree. It is somewhat difficult to appreciate this argument. The clear words of the section say that sums due under the chapter may be recovered from the owner or holder of rent-free land by any means or process by which the amount could have been recovered if it was due on account of rent of a transferable tenure or holding. The ordinary, and indeed the most important, method of recovering rent is by a suit, and, therefore, it is clear that Section 64A applies to proceedings before a decree and not proceedings afterwards. In my judgment, there is no substance in the contention that Section 64A has no application to suits for sums due under Ch. 4. It was expressly enacted to govern such suits and to provide the period of limitation for them. For the reasons which I have given, I am satisfied that the plaintiff''s claim, in so far as it concerns the year 1343 B should not have been dismissed on the ground of limitation. The suit for the whole amount was brought within time and should have been decreed for the amount claimed in the plaint. The decree of the lower Courts will, therefore, be varied and the suit now decreed for the full amount claimed in the plaint. The appellant is entitled to his costs of this Letters Patent appeal, but the order as to costs in the Court of the learned Single Judge and the lower Courts is maintained.

Fazl Ali, J.

I agree.

Dhavle, J.

I agree.