Surja Gorain vs Gnanendra Nath Banerji and Others

Wort, Ag. C.J.

This appeal is by the tenant defendant in an action in which the plaintiffs claimed compensation and ejectment by reason of misuse by the defendant of the land in the holding. It appears that on a small portion of the holding, a house had been built by a person to whom the land had been transferred by the tenant-defendant. The case came u/s 22, Chota Nagpur Tenancy Act; for the purposes of decision of this case, I need refer to one other Section, namely Section 69. The trial Court gave a decree for Rs. 100 compensation and ejectment within six months if that amount was not paid. On appeal the learned Judicial Commissioner came to the conclusion that the misuse was capable of remedy and therefore confirmed the decree of the trial Court for Rs. 100 and also gave a decree for the remedy of the misuse, on failure of which, the plaintiffs were entitled to eject the defendant-tenant.

Now, from what I have already stated, it would appear that the tenant could remedy the misuse only by forcing his sub-tenant to do so: to put it in the language of Mr. De, the remedy of the misuse is within the power of the sub-tenant and not within the power of the tenant, his client. A number of authorities have been relied upon from which I am asked to draw an inference that the correct view of the law is that when a tenant has transferred his holding, whatever the nature of the use or misuse of it is, it becomes incapable of being re. medied: in other words, when it is beyond the tenant''s own power, Sub-section(3) of Section 69 does not apply. I must say that I cannot construe that Section in that manner. It is rather the nature of the misuse to which the Section is directed and not to the person who is guilty of the misuse (in this case it was the sub-tenant who erected a house on the land in question). Afizaddi v. Satis Chandra Banerjee A.I.R (1919) Cal. 722 is a case relied upon for this contention. The decision however in that case did not relate to this point. The learned Judge who delivered the judgment of the Court stated in the course of his judgment that

the Subordinate Judge, while agreeing that the breach of the contract was not capable o� remedy, set aside the decree of the Munsif and directed that the plaintiff should get khas possession of the tenure by ejecting the defendant.

The judgment then proceeded to discuss the application of Section 155, Ben. Ten. Act, to the facts of the case. It was not a case in which it was decided that the tenant had parted with the land and that the misuse by parting became ipso facto incapable of remedy. Similar state of affairs exists in Mt. Sadia Bibi v. Dukhi Gope A.I.R (1935) Pat. 422 ; the proposition was not argued and certainly not decided by this Court. Even if the learned Judge of the trial Court had come to the conclusion that the house was capable of being pulled down, the removal of the house would only have placed the land in the position it was before the acts complained of. In my judgment the only possible construction to be placed on Section 69 is that the misuse did not become incapable of remedy by reason of the tenant parting with the land. It is not for me to say how the tenant, if this decree was passed against him, would perform what he is ordered by the Court to perform: it is sufficient for me to decide whether the decree should be passed.

Mr. De in support of this part of his argument referred to two English decisions in actions for specific performance, one Bryat v. Busk (1827) 4 Rus 1 in which before the action was heard, the deeds of title had been burnt in an accidental fire at the Solicitor''s office and the other in which the defendant had deliberately burnt his title deed. In both cases although the plaintiff got his remedy, he was refused an order for specific performance (if I may say so with respect to the learned Judges who decided those cases) for very obvious reasons. In the stronger case, namely where the defendant had burnt his own title deed and therefore was to some extent pleading his own wrong, the Court refused to make a decree or to give a judgment for the disobedience of which the defendant could be sent to prison. He was bound to disobey; he could not avoid disobeying the decree of the Court for the simple reason that it was beyond his power to obey. That, of course, would not dispose of the action, and in all such cases in England the plaintiff would be entitled to compensation.

The next question for determination is whether the action was barred by limitation. There seems to have been some dispute in the trial Court as to when the house was built: there was also a dispute whether limitation ran from the date the building was commenced or from the date on which it was completed. Section 23, Limitation Act, is referred to. That is a Section which in my judgment gives no assistance to the defendant-appellant. In the case of continuing breach of contract or continuing wrong independent of contract, fresh period of limitation begins to run from the moment the breach or the wrong continues. It is the contention of Mr. De, as I have already indicated, that limitation ran from the date of the commencement of the building; in other words, from the very moment the first act of the building commenced. It may be an exaggerated way to put the point; but the moment it is put in that way, it will be seen how unsustainable the argument is.

When the person commenced the foundation of the building the plaintiff could have no knowledge whether the land was being used contrary to the terms of the tenancy or contrary to the purposes for which the land was let out. The knowledge came as the building progressed. It is impossible therefore to say that limitation was running against the plaintiff from the moment the first operation of the building was commenced. In my judgment, quite clearly, the building of the house was a continuing wrong and, when it was finally erected, limitation did commence definitely against the plaintiff. In that view of the matter it is clear that the action was not barred by limitation.

For those reasons I would hold that the decision of the learned Judge in the Court below was right and the appeal therefore fails and must be dismissed with costs. Leave to appeal is refused.