Nathan Prasad Shah vs Kali Prasad Shah

In 1907 the plaintiff who is proprietor of village kasba Syedpur in the Santhal Parganas, executed and registered an ijara deed granting certain proprietary rights in the village in favour of the defendant for a term of seven years in consideration of an advance of Rupees 26,000. Under the terms of the deed it was agreed that the ijaradar "should remain in possession of the ijara property and out of Rs. 1,630-8-0 the fixed annual rent, he should pay Rs. 411-5-6 as Government revenue and road-cess into the Government Treasury every year, should deduct and appropriate to himself every year, Rs. 975 in lieu of interest on the zarpeshgi money and should pay the remaining sum of Rs. 294-3-0 every year as haq ajiri" to the plaintiff.

The defendant failed to pay the haq ajiri for several years in succession and, therefore the plaintiff instituted the suit out of which this second appeal arises, claiming the haq ajiri for the years 1320 to 1325 Faslis both inclusive together with interest at the rate of 12 par cent. per annum. After the defendant had filed his written statement the plaintiff amended the plaint withdrawing the claim in respect to the year 1320 Fasli.

The defendant did not deny that the haq ajiri was due for the years 1321 to 1325 Faslis but he contested the claim for interest and also sought to set off against the demand in respect of haq ajiri certain payments alleged to have been made by him to the plaintiff. Of these it is only necessary to mention two namely, (1) a payment of Rs. 150 realized from one Rai Bahadur Baikuntha Nath Sen, who had excavated a tank in the village without permission and (2) a sum of Rs. 240-5-6 due as rent for the six years in respect of lands in the village held by the plaintiff as raiyat under the ijaradar and Rs. 120 due as interest on the said arrear rents. The other items sought to be set off have been disallowed by the lower Courts and no appeal is pressed before us in regard to them. This defendant also set up the bar of limitation against the claim for haq ajiri for 1320 to 1323, and urged that Mt. Sita Sahuan should have been joined as plaintiff.

The Subordinate Judge found that the plaintiff was entitled to the haq ajiri claimed for the years 1321 to 1325 inclusive and that though the ijara deed contained no stipulation for the payment of interest thereon the haq ajiri being rent the usual rate of 12 per cent. ought to be paid. With regard to set-off the Subordinate Judge disallowed all the items except that relating to the rent of the plaintiff''s raiyati holding but even that claim was found excessive since the rent for 1320, 1321 and 1322 was not recoverable, the claim being barred by limitation. A sum of Rs. 117 was allowed to be set off as rent cess and interest.

On appeal the learned District Judge held that the haq ajiri was rent and as such according to the custom in the Santhal Parganas, interest was payable on arrears at the rate of 12 per cent. He upheld the decision of the Subordinate Judge that the proprietor and not the ijaradar was entitled to the Rs. 150 paid by Rai Bahadur Baikuntha Nath Sen and rejected the claims to set off other than that allowed by the Trial Court. He thus dismissed the appeal.

The only points pressed in appeal before us are (1) that haq ajiri is not rent and there being no stipulation for interest on it the Courts below were wrong in allowing interest; (2) that though the defendant would not be able to seek his remedy by suit in respect of the arrears of rent for 1320 to 1323 that remedy being barred by limitation, the debt still subsisted and he was entitled to have the arrears of all six years set off against the plaintiff''s claim and (3) that the defendant, as ijaradar with full proprietary rights granted by the ijara lease, was entitled to the Rs. 150 paid as compensation of the wrongful excavation of a tank.

At first sight, since the ijara speaks of the hak ajiri as being one of the component parts of the Rs. 1,630-8-0 which is described as the fixed annual rent, there would be an inclination to decide that the lower Courts were correct in finding that interest was payable on it as rent. It is argued that zarpashgi lease is not a mere contract for cultivation but it also provides security for money advanced, and in the present case it was arranged that the appropriation of Rs. 975 every year by the ijaradar furnished the security for the advance, while the Rs. 294-3-0 took the form of rent for the right to cultivate or to collect rent from the raiyats. The question however whether in such a case as this haq ajiri is rent has been decided by this Court in the case of Barhamdeo Narain Singh Vs. Ramanand Prasad Singh and Another and Saligram Singh, . That case was similar to the present one; there in consideration of Rs. 12,000 certain zamindari rights were made over to a person who made the advance at what was described as a fixed annual rental of Rs. 803-4-0. Out of this Rs. 803-4-0 the person who made the advance was to deduct Rs. 620 on account of interest on the zarpeshgi and was to pay Rs. 83-4-0 annually to the person who received the advance, Chapman and Atkinson, JJ., held that this haq ajiri payments of Rs. 83-4-0 was not rent, that the deed was a usufructuary mortgage and that the person in possession held as mortgagee and not as tenant; the haq ajiri was due from him as mortgagee under an arrangement with the mortgagor and was not due from him as tenant. We see no good reason to differ from the above decision and following it must decide that the haq ajiri not being rent, no interest was payable on it, as there was no stipulation in the deed for payment of interest thereon.

As regards the set-off of the arrears of rent payable by the plaintiff to the defendant, the learned Subordinate Judge was clearly mistaken in holding that the set off of the rent of the years 1920 to 1922, inclusive, was barred by limitation. The case of Sheo Saran Singh v. Mahabir (1905) 32 Cal 576 is an authority for holding that in a suit like the present one the rent of lands held by the mortgagor and forming part of the mortgaged property can be set off and that such rents may be set off, even though they may be barred by limitation. Gajadhar Mahton v. Raghubir Gope (1907) 12 CWN 60 and Ramdhari Singh v. Parmanund Singh (1913) 19 CWN 1185 also decide that a time-barred debt may be claimed by way of equitable set-off. The defendant-appellant must be allowed to set-off the rent of the six years 1320 to 1325 Faslis at the rate of rupees 29-8-0 a year, that is to say Rs. 177 and road-cess and interest at the rate of 12 per cent. per annum.

The last point pressed before us is with regard to the sum of Rs. 150. It appears that Rai Bahadur Baikuntha Nath Sen without permission excavated a tank in the village; both the plaintiff and the defendant took proceedings in Court against him, but the matter was settled by the payment of Rs. 150 which the plaintiff received. It is contended that as the deed of ijara gave to the defendant all the rights of the proprietor during the term of the ijara, the defendant was entitled to get the money as temporary proprietor, and, because the excavation of the tank deprived him of part of the usufruct, he is entitled to compensation. If he was entitled to compensation on this ground, he would have to seek it from the plaintiff who mortgaged the property to him and not from the stranger who trespassed. The contention cannot be supported, the damage was damage to the corpus of the property, and the ijaradar would not be allowed to take, away any portion of the soil.

On the findings I have come to, the appeal must be allowed in part and the decree of the lower Court must be modified to this extent, that the plaintiff-respondent will be declared to be not entitled to interest and the sum of Rs. 705 will be deducted from the amount decreed; also the appellant will be declared to be entitled to set off Rs. 177 as rent of the plaintiff''s holding for the six years 1320 to 1325, both included, with road-cess and interest at the rate of 12 per cent. per annum; this sum of Rs. 177 and the road-cess and interest will be further deducted from the sum decreed as payable to the plaintiff by the lower Courts.

The parties will get costs proportionate to their success in all the Courts.