Sidheshwar Prasad Singh vs Ramcharitar Chaudhuri and Another

Rowland, J.—The facts of the litigation and the history of the land which gave rise to the rent suits leading to these appeals are somewhat complicated; but the points arising for decision in the appeals are simple. The contention of the appellant who was defendant 1 in Suit No. 349 of 1936 and was defendant 3 in Suit No. 448 of 1936 was to begin with that the suit as framed was not maintainable because there were lands of more than one holding included in the suit. It was also said that some of the lands sued for were nagdi and some were bhauli. Alternatively, it was contended that part of the claim was barred by limitation and further it was said that the Courts below had assessed the produce of the bhauli lands arbitrarily and not on basis of evidence and should have passed a decree not in excess of the quantities of produce admitted by the defendant. As to She first point, the appellant relies on the previous history of the land. There had been a number of raiyati holdings which had been purchased in about the year 1922 by certain of the cosharer proprietors, namely Prayag Singh alias Lal Babu and his nephew and cousin Kalika Prasad and Sheonandan Prasad Singh.

The two latter persons subsequently transferred their milkiat interest to Ali Sajjad who is impleaded in Suit No. 349 as defendant 2. The apparent result of this will be that those purchased lands would remain in the occupation of Ali Sajjad and Prayag Singh alias Lal Babu in equal shares. Thereafter by a deed of gift Prayag Singh transferred his interest in these lands to the appellant who thus became entitled along with Ali Sajjad to hold them subject to payment of the proportionate rent to the other cosharer maliks. Now it is said that although the interest of Prayag Singh was transferred to this defendant by one transaction, nothing in these proceedings has had the effect of amalgamating the several holdings so as to create a single holding in respect of which one suit can be instituted by the plaintiffs for its rent. Now the question whether the holdings were amalgamated or not seems to me to be substantially a question of fact and it has been held by both the Courts that the holdings have been amalgamated. The objection on this ground to the maintainability of the suit, in my opinion, must fail.

The next point raised is that of limitation. Treating the lands in suit as one holding we find that it is a holding for part of which cash rent is paid and for part of which produce rent; and it is therefore contended that the limitation applicable to a suit for rent of such a holding is governed by the Bihar Tenancy Act, Schedule 3, Part I, Article 2(iii)(b)(ii) where the rent is paid in any of the ways specified in Sub-section (1) of Section 40 and the period of limitation prescribed by the Act as amended in November 1934 is one year. Doubt was expressed at one time whether the shorter period of limitation was to be held applicable to suits for which the cause of action accrued before the passing or before the coming into force of the Act; but the doubt has been set at rest by the decision in Reyasat Sheikh v. Gopi Nath Misser A.I.R (1939) . Pat. 122 where it was laid down that in suits instituted after the Amending Act came into force, the shorter period of limitation would be applicable.

It is only necessary therefore to look to the date of institution of the suit which in each of the two appeals is 14th September 1935. This concludes that the shorter period of limitation will be applicable to these suits and the claim in each suit in respect of the year 1340 and the claim in Suit No. 448 for the year 1339 will be held to be barred by time. Then as to the argument that the Courts have assessed the produce of the bhauli land arbitrarily and that there, fore the findings should not be supported, we have been referred to Pratap Narain Jha v. Ramasray Pershad A.I.R (1938) Pat. 81 in which a Full Bench of this Court has laid down that in a suit for produce rent it is for the landlord to prove the quantity of the out-turn and in the particular case it was stated that "no decree can be claimed except so far as liability has been admitted by the defendants."

That is a statement of the position in the absence of any evidence on the part of the plaintiff on which a Court can act in forming its estimate of the pro-duce and the principle no doubt will apply if all the evidence adduced is found totally worthless. But in this case although the landlord''s papers were found to be unreliable and suspected to be fabricated and although the patwari did not show any great degree of familiarity with the lands in suit or competence to estimate accurately their produce, the Courts did have before them some material on which an approximate estimate of the outturn could be based.

There was the raibandi in batwara proceedings, there was the fact that the area was canal irrigated, that the lands were fertile and not sandy and there were of course such admissions as have been made by the defendant himself. We cannot say that the finding as to the outturn in this case is a finding unsupported by evidence or one with which we should be entitled to interfere treating it as not a finding of fact for the purposes of second appeal.

I would therefore allow the appeals in part modifying the decree of the Court below by dismissing the claim so far as it refers to the years 1339 and 1340, but affirming the remainder of the decree. The plaintiff will get his proportionate costs in the first Court and the defendant-appellant will have costs in proportion to his success in the appeal and second appeal.

James J.

I agree.