Ramniranjan Chaudhury and others vs Gobardhan Thakur and others

Dawson Miller, C.J.—This is an application for leave to appeal to His Majesty in Council. The actual sum claimed together with interest up to the date of the decree is over Rs. 10,000. It is pointed out, however, that that sum is made up on the assumption that the plaintiffs are the owners of a 7 annas, 4 pies share in the property claimed, whereas the Court found that they were the owners of only 5 annas, 4 pies share and there has been no appeal upon that part of the decision. Deducting the 2 annas the sum claimed would come to rather under Rs. 10,000. As however the question relates not merely to past claims but also to all future claims we think that the case comes within the provisions of section 110 as it certainly raises a claim respecting property of over the value of Rs. 10,000.

There is a further point, however, that the decision sought to be appealed from is a decision of affordance, and the question is whether there is a substantial question of law. The point is one of limitation. It has been found that under the law relating to limitation before the Act of 1877 came into force the claim in this suit that is to say the claim for malikana were entirely barred on the ground that it was a claim relating to an interest in land and the Act of 1877 could not revive the claim which had previously been barred. It is pointed out, however, that the Act of 1871 was also in terms similar to that of 1877 and that the claim had not become barred by the year 1871. It seems to us that the Act of 1859 applied to the case and that the claim did become barred before the Act of 1871 came into operation under the law then in force. The petitioners contend that there is a substantial question of law arising on this point. There have undoubtedly been a number of cases beginning in the year 1868 and going down to the year 1913 all to the same effect namely that the claim for malikana being claims in respect of an interest in land did become barred absolutely by limitation under the provision of the Statute before that of 1871 and that the Statute of 1871 and 1877 did not have the effect and could not have the effect of reviving the claim which had already become barred. The learned Vakil for the petitioners contends that the series of cases is all wrong and they wish to take the opinion of the Privy Council about it. We think, however, that having regard to this long consensus of opinion on the question we ought not to treat it is a substantial question of law remaining to be determined but should refuse the present application on the ground that there is no substantial question of law, and if the appellant wishes to have this question brought before their Lordships of the Privy Council he will have to make a special application to that effect.

We think that the application should be rejected. The respondents are entitled to their costs: hearing fee five gold Mohars.

Kulwant Sahay, J.

I agree.