Rajah Khetter Kristo Mitter vs Kumar Dinendra Narain Roy

Maclean, C.J.—Three points have been argued before us on this appeal. I will deal with them in the order in which they are submitted for our consideration. The first point is, that the suit is barred by the Statute of Limitation. The Appellant who is the Defendant in the suit, contends that article 36 of the second schedule of the Limitation Act applies, whilst, on the other hand, the Plaintiff says that either article 62 or article 120 is the article properly applicable to this case. Article 36 is in these terms: "For compensation for any malfeasance, misfeasance, or non-feasance independent of contract, and not herein specially provided for." It seems to me that the first answer to the contention that the case comes within that article is that this is not a suit for compensation in the true acceptation of that term. What compensation, qua compensation, does the suit ask for 1 I received no answer from the Appellant''s vakil to that question. If it be not for compensation, that alone would be sufficient to exclude the case from the operation of article 36. But beyond that, in my opinion it is not a suit for compensation for any malfeasance, misfeasance or non-feasance. This is not the class of suit which is aimed at by article 36. My opinion is that, having regard to the proviso to sec. 40 of Act X of 1870, the case would more properly come within article 62, but if it do not come within that article, it is one of those suits for which no period of limitation is specially provided for in the Act, and therefore comes within the operation of article 120. Whether it comes under article 62 or article 120, the Plaintiff has admittedly brought this suit within the prescribed period. So much for that point. The second and third points are so interlaced, that I will deal with them together. The point mainly urged by the Appellant is that his holding is a mokurari holding, and that the Judge in the Court below was wrong in holding, as he did, that it was not a holding of that nature, and that, being wrong in that which was the initial step in his apportionment of the compensation money as between the Appellant and the Plaintiff, the principle on which he has apportioned the compensation given by the Collector was wrong. The Appellant says that if his holding be a mokurari holding, i.e., a permanent holding at a permanently fixed and non-enhancible rent, ho ought practically to have received the whole of the compensation money, and his landlord the Plaintiff to have got nothing. It therefore becomes necessary for its to consider, whether the Defendant has made out that his holding was of the nature he alleges. Admittedly he is a tenant. He is unable to produce any lease; he is unable to produce any rent receipts; and I cannot but feel that there is a considerable force in the observation of the learned Advocate-General that probably or possibly one reason for the non-production of any rent receipts is, that if produced the identity in the amount of rent would not be established. In other words, it would be shown that the rent paid, had not always been the same. But as the Defendant admitted that he was a tenant, the onus is upon him to show that his tenancy is such as he sets up, namely, a permanent tenancy at a rent which cannot be enhanced. In the absence of the lease, and of any other documentary evidence in support of his case, the Defendant relies upon certain judgments which are set out at pages 23 and 24 of the Paper-book, and he says that those judgments show that, as between the Plaintiff'' and the Defendant, the matter is res judicata, in the sense that it has been decided that the rent cannot be enhanced. I do not think that much reliance can be placed upon, either this argument, or upon the documents upon which that argument is based. In the first instance, looking at the nature of the suit it purports to have been a suit by a certain individual as gomastha on behalf of certain other individuals, who are not proved to have been the predecessors in title of the present Plaintiff. The decision is based on the admission of this gomastha who is the Plaintiff'', that the Defendant had been in possession from time immemorial. That to my mind is not very satisfactory. It is not shown that this gomastha had any authority from his principals to bring such a suit, nor as I have pointed out that his principals are the predecessors of the present Plaintiff. It is not shown, with any certainty, who were the persons on whose behalf the suit was brought, nor is it shown, with any certainty, that the Defendant in that suit was the predecessor in title of the Defendant in this, nor is it shown with any certainty that that suit applied to the tenure and property, which is the subject-matter of the present litigation. The identity is not shown. When the case came to this Court the title had been altered; the gomastha, as Plaintiff, had disappeared; but there is nothing to shew how that change was effected or by whose authority. Upon these materials I am not inclined to say that that suit decided as ''between the parties to the present suit, that the rent of the property admittedly held by the Defendant as tenant of the Plaintiff, and taken under the Land Acquisition Act, could not be enhanced. The pleadings in that suit are not before us, and it is a little difficult to say with precision what the actual suit was, At the most it was a rent-suit; this is a suit which goes to the Plaintiff''s and Defendant''s title to the property. The Deputy Collector, who tried the former suit, had no jurisdiction to try the question of the title to the property itself; and as it was pointed out in the decision of the Privy Council, which was cited by the learned Advocate-General, in Rajah Bun Bahadoor v. Lachoo Koer (L.R. 12 I. A. 23 (1884-85)), where the Court trying the case in which the judgment is sot up as res judicata has not concurrent jurisdiction with the Court trying the subsequent case, the principle of res judicata cannot apply. The judgment in a suit which decides merely questions of rent - in other words a rent-suit--pronounced by a Court not having jurisdiction to decide the question of title to the property itself, cannot, as I understand the decision of the Privy Council to which I have referred, be regarded as amounting to res judicata in a subsequent suit brought to decide the question of title to that property. But quite apart from these considerations, for the reasons I have given, it is not satisfactorily shown what the previous suit and previous judgment really were. The plea of res judicata fails.

Then it is urged that if those judgments do not amount to res judicata, they can be used as evidence against the Plaintiff. How can they be used as evidence, and of what? Upon this point the Appellant''s vakil has not enlightened us materially : nor was it really pressed. I come to the conclusion to which the learned Judge in the Court below also came, that the Defendant, on whom the onus lay, has not made out that this was a mokurari lease.

Then the question remains whether, upon these facts so found, the Judge in the Court below was right in the way in which he apportioned as between the parties, the compensation money which was awarded by the Collector. It occurred to me during the course of the argument, that the proper course would have been to ascertain, first, what was the value of the landlord''s interest, and secondly, what was the value of the tenant''s interest, and having found the money value of these two interests, to apportion and divide the money accordingly. But I understand that in this country it is almost impossible to take that course; it is almost impossible to say what is the value of the interest, that is, the precise money value of the lessee''s interest, on the one hand, and on the other, what is the precise money value of the landlord''s interest. That being so, the Courts have adopted what perhaps I may call a rough and ready way of settling the matter. It appears from the note to the case of A. M. Dunne v. Nobo Krishna Mookerjee (I.L.R. 17 Cal. 144 (1890)), and in another case of Godadhar Bass v. Dhunput Sing (I.L.B. 7 Cal. 589 (1880)), that the course the Courts here have adopted is, after providing compensation for the amount payable to the landlord as rent and granting abatement to the ryot, to divide the balance between the two parties in equal shares. That being so, we follow those precedents, though to my English ideas, based upon the principles of apportionment adopted by the English Courts under the Lands Clauses Acts as between landlord and tenant, the course seems a little odd. Upon all those points I arrive at a con-elusion adverse to the Appellant, and that being so, the appeal must be dismissed with costs.

Rampini, J.

I concur.