Sheikh Abdul Ahad and Another vs Harikishun and Others

Chatterji, J.—This is an appeal by the plaintiffs who brought a suit for recovery of bhaoli rent for 1341 and 1342 Fasli, in respect of 2 kathas 14 dhurs of land comprised in survey plot No. 3563 in village Aranda, or in the alternative, for assessment of fair and equitable rent. Admittedly defendants 1 to 3, the tenants, had formerly their house on the disputed plot, but their house fell down after which they planted trees on the land.

In the revision survey the plot was recorded as bhaoli in the khanapuri, but on an objection filed by defendants 1 to 3 u/s 103, Ben. Ten. Act, the bhaoli entry was struck off by an order of the assistant settlement officer dated 14th June 1918. The plaintiffs'' case is that in spite of this order there was a mutual arrangement between the parties under which the defendants were dividing the produce with the plain, tiffs till 1341.

In 1935, the plaintiffs brought a suit for bhaoli rent, but in that suit defendants 1 to 3 denied the bhaoli character of the land. So the plaintiffs brought the present suit. The defendants pleaded that the land was their belagan bihbasgit and was not liable to pay rent. The learned Munsif held that the land was belagan, but liable to assessment of rent. He accordingly fixed an annual rental of Rs. 1-2-0 per katha as against Rs. 3 per katha claimed by the plaintiffs. On appeal by the defendants, the learned subordinate Judge dismissed the suit holding that the plaintiffs'' right to realise any rent was barred by limitation. Hence this second appeal by the plaintiffs. The view taken by the learned subordinate Judge is that during the revisional survey operations the defendants had repudiated the plaintiffs'' right to recover any rent, and the order of the assistant settlement officer upholding the defendants'' objection being dated 14th June 1918, the present suit which was brought on 29th June 1936 was barred by limitation under Article 131, Limitation Act. That article provides that the period of limitation for a suit to establish a periodically recurring right is 12 years from the date "when the plaintiff is first refused the enjoyment of the right".

The learned advocate for the appellants contends that the learned subordinate Judge''s view is based on a misconstruction of the order of the assistant settlement officer. His point is that the real dispute before the assistant settlement officer was whether the trees were held on bhaoli, and not whether the land was liable to pay any rent. In either words, the question of any cash rent being payable for the land did not at all arise. There is no force in this contention. The plaintiffs were claiming bhaoli rent, not for the trees over which they had no right apart from the land, but for the land of which they were proprietors. The defendants by denying the liability to pay bhaoli rent were really asserting that they were not liable to pay any rent at all.

In fact they pleaded that they never paid any rent, and this plea was accepted by the assistant settlement officer. When therefore the assistant settlement officer passed the order dated 14th June 1918, the plaintiffs were "first refused the enjoyment of the right" to realise rent. Thus Article 131, Limitation Act, clearly applies.

In this connexion reference may be made to the decision of a Division Bench of this Court in Jagannath Kishore Lal Singh Deo Vs. Bipan Mahato and Others, . In that case the tenants defendants before the attestation officer and in the presence of the plaintiff-landlord asserted their right to hold land rent-free as far back as January 1921. The suit for rent which was filed on 7th April 1934 was held to be barred under Article 131, Limitation Act.

The appeal must therefore be dismissed with costs. Leave to appeal under the Letters Patent is granted.