Shamu Bhagat and Others vs Ram Das Bhagat and Another

Agarwala, J.—The land to which this suit relates was recorded in 1916 as the jagir of the defendants. In 1917 the plaintiff instituted a suit for a declaration that the land was a raiyati land and for recovery of Rs. 96 as arrears of rent. The first Court held that the land was the defendants'' jagir and dismissed the suit. In appeal by the plaintiff the District Judge held that the land was raiyati land. The appellate Court however dismissed the claim for rent, holding that there was no evidence that rent had been ever paid. In appeal by the defendants against the finding that the land was raiyati land the High Court confirmed the decision of the District Judge. The present suit was instituted by the plaintiff on 3rd September 1928, praying for settlement of fair rent and damages for the years 1332 to 1335 F.S.

The plaintiff asked the rent to be assessed at Rs. 45 a bigha. The first Court decreed the suit at Rs. 25 a bigha and allowed damages for use and occupation for the years 1333 to 1335. The defendants appealed to the District Judge, contending that the suit was barred by limitation, that the plaintiff was not entitled to assessment and that in any case the assessment was too high. The plaintiff filed a cross-objection the ground of the assessment being too low. The appellate Court dismissed the cross objection and, with regard to the appeal, held that, in view of the decision in the suit of 1917, the defendants must be held to hold the land as tenants under the plaintiff and were entitled to assessment.

The lower appellate Court also held that in these circumstances no question of limitation arose and that the assessment was fair and equitable. In second appeal by the defendants, their learned advocate has argued that as the defendants, have, since 1915, at the khanapuri stage of the settlement proceedings set up a right to hold the land in suit free of rent, the present attempt to assess the rent is barred by limitation, the suit having been instituted more than 12 years after the first assertion of the right to hold the land rent-free.

In support of this proposition the learned advocate for the appellants cited Letters Patent Appeal No. 39 of 1930. The case however was very different from this. In 1915 the plaintiff set up a jagir right. Before that right had been perfected by 12 years adverse possession, the plaintiff obtained a declaration that the land was raiyati land and that the defendants were tenants under him. The learned advocate says that in spite of that decision the defendants had persisted in their claim to hold the land free of rent. That may be so. But from the date of the decision of the High Court in 1921, which settled finally between the parties that the land was raiyati and that the defendants were tenants, all that the defendants can be held to have been asserting is that they held as rent-free raiyats.

This title is different from the one which they were asserting prior to the litigation of 1917; and, in my view, the two periods in which they were asserting different rights cannot be added for the purpose of defeating the present claim. The appeal therefore fails and is dismissed with costs.

There is a cross-objection by the plaintiff on the ground that the assessment of rent is too low. The amount of rent which is fair and equitable is not a question of law to be agitated in second appeal. The cross-objection is dismissed with costs.