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(Hazarat Kibulai Saiyiot Sahib Kaditi) Ghulam Ghouse Sha Vs. Minor Pakkiri Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1926Mad782; 95Ind.Cas.1014
Appellant(Hazarat Kibulai Saiyiot Sahib Kaditi) Ghulam Ghouse Sha
RespondentMinor Pakkiri Rowther and ors.
Cases ReferredDuraisami Reddi v. Venkatachalam Pillai
Excerpt:
- .....is included in the designation,' suit or other proceedings for the purpose of ascertaining the rent.' rent, of course, need not mean money rent ; it may be rent in kind. and his contention is that there may be disputes as to the area cultivated, the amount of water supplied by the landlord and various claims to abatement etc., which do vary the actual rate of rent ; and until these matters have been decided between the landlord and his tenants the rent has not been ascertained. in this connexion the following cases have to be considered :--rangayya appa rao v. bobba sriramulu [1904] 27 mad. 143, which was a decision of the privy council under the lknitation act in which their lordships considered sections 7, 9, 10, 11 and 14 of the rent recovery act, in detail and came to the.....
Judgment:

Odgers, J.

1. This is a batch of appeals for rent of a certain land for Fasli 1316 (1907). The suits were instituted on 30th June 1910 and on 1st July 1910. The litigation thus covers a period of nearly 15-1/2 years. They were first heard by the Revenue Officer on 30th March 1911. He held that the village is one in which the melvaram is taken by the landlord at the time of the harvest, and it is then, therefore, that the rent becomes due. The harvest in 1907 must have taken place, at the latest, in March of that year, and accordingly the rent then became due. The Revenue Officer heard the arguments of the vakil who referred to Rangayya Appa Row v. Bobba Sriramulu [1904] 27 Mad. 1433 (which will have to be again referred to) and considered the wording of Schedule A, No. 8 of the Mdras Estates Land Act and came to the conclusion that the suits for enforcing acceptance of patta which the plaintiff had instituted, and in which judgment was given on 1st July 1907, were not suits for ascertaining the rent. He therefore held that the suits were out of time and gave judgment for the defendant. On 16th June 1911 the same Revenue Officer admitted an application for review of his judgment, basing his review order on the judgment reported in Singaram Pillai v. Ghulam Ghouse Sha [1910] 36 Mad. 438. which had not been brought to his notice in March 1911. The latter admitted the review on a perasal of the judgment and restored the suits to file. It is said that the plaintiff paid stamp on only one suit at this time and delayed paying upon the others till five years later. The suits were then retried, and on 17th June 1920 the Revenue Divisional Officer, Kumbakonam Division, gave his decision which entirely turns on the conditions of the patta. On appeal to the District Judge, it was held that the suits were clearly barred and the original order of dismissal was right, there being in these no necessity for ascertainment of rent and that the summary suits were clearly not to establish this but to establish the maintainability of a suit to recover the rent. The summary suits were decreed on 1st July 1907, as stated above, before the Estates Land Act came into operation, but the suit for rent is after that, and therefore the limitation period in the Madras Estates Land Act is to be applied. The former period of limitation was contained in the Limitation Act, Article 110, this class of cases beings regulated by Act VIII of 1865. Article 110 of the Limitation Act of 1908 provides that for arrears of rent plaintiff has three years from the time the arrears became due. Now under Act VIII of 1365 no suit can be brought to enforce the terms of tenancy unless: (1) pattas and muchilikas have been exchanged ; (2) the party attempting to enforce the contract had tendered a patta or muchilika which the other party was bound to accept ; or (3) both sides had agreed to dispense with pattas and muchilikas. If the tenant refused to accept such a patta as the landlord wa3 entitled to impose and to grant him a muchilika in exchange, the landlord could proceed by a summary suit to enforce acceptance of the same. Therefore, as a condition precedent to a suit under the Rent Recovery Act there must be either an exchange, or the landlord must have tendered a proper patta. The period of limitation prescribed by the Madras Estates Land Act of 1908 is the date when the arrears become due where there has been a suit or other proceeding for the purpose of ascertaining the rent, the date of the decree or order by which the rent is finally ascertained, whichever date may be later. Mr. S. Varadachariar, for the appellant, says, and I think says rightly, that it is clear from this that two alternative starting paints are provided in the Act. His difficulty is that in this case the summary suits were decided on 1st July 1907, which date is vital for his purpose, and were admittedly not suits to ascertain the rate of rent, and the judgment runs as follows:

Defendants agreed to waive the sole issue as to whether patta was served,' so that the learned vakil argues in second appeal that any summary suit between the landlord and his tenant is included in the designation,' suit or other proceedings for the purpose of ascertaining the rent.' Rent, of course, need not mean money rent ; it may be rent in kind. And his contention is that there may be disputes as to the area cultivated, the amount of water supplied by the landlord and various claims to abatement etc., which do vary the actual rate of rent ; and until these matters have been decided between the landlord and his tenants the rent has not been ascertained. In this connexion the following cases have to be considered :--Rangayya Appa Rao v. Bobba Sriramulu [1904] 27 Mad. 143, which was a decision of the Privy Council under the Lknitation Act in which their Lordships considered Sections 7, 9, 10, 11 and 14 of the Rent Recovery Act, in detail and came to the conclusion, reversing the judgment of the High Court, namely, that although generally rent would become due at the close of the period in which it is to be paid, yet that need not necessarily be always the case and that as long as proceedings are pending before the Collector, and on appeal from, him, before the civil Courts, the rate of rent is in suspense, for no one can say what it will prove to be; and that, therefore, no arrears of rent can be said to have become due within the meaning of the Limitation Act.

2. In that case the rates of rent had been finally ascertained by the High Court. In second appeal their Lordships say that by the decree of the High Court the conditions of tenancy including the rates of rent were finally determined and in their Lordships' opinion the whole series of sections considered by them, of Act VIII of 1865 applies to ascertained rents and mot to rents at rates which have yet to be determined. In that case, then, it appears that what was actually decided by the High Court was the rate of rent and that under Article 110 of the Limitation Act all arrears of rent means arrears of ascertained rent. Therefore, when the proper rate of rent has to be ascertained by proceedings under Act VIII of 1865 the period of limitation runs from the date of the final decree determining the rate of rent.

3. Much reliance is placed by the learned vakil for the appellant on the judgment or Sir Arnold White. ex-Chief Justice, sitting as a single Judge in Syed Ghulam Ghouse Sha Sahib v. Shumugam Pillai [1911] 34 Mad. 438. There the tenant contended that the suits were barred because they were brought more than three years after a decree of the High Court in 1902. The landlord, however, said that arrears did not become due till May 1904, being the date of the judgment of the Sub-Collector in certain proceedings under the Rent Recovery Act. The proceedings in the High Court were for declaration that the landlord was not entitled to vary the terms of the previous pattas. The learned ex-Chief Justice, distinguishing the case in Arunachalam Chettiar v. Kadar Rowther [1906] 29 Mad. 556 considered carefully the case of the Privy Council just cited. He was of opinion that the judgment in the declaratory suit by the tenants or that in the High Court suit did not determine once and for all the rate of rent, there being in the High Court decree a provision that either party might claim a modification of the patta as circumstances arose. The ex-Chief Justice says that when their Lordships in Rangayya Appa Rao v. Bobba Sriramulu [1904] 27 Mad. 143 speak of ascertained rents they mean rents which have been ascertained by means of procedure provided by the Rent Recovery Act. It is contended that the ratio of these decisions is such as to cover summary suits which are not in fact suits for the ascertainment of the rate of rent. I may say I am unable to follow this. The decision seems to proceed on the belief of the learned Ex-Chief Justice that the declaratory suits had not settled the rate of rent but that the Summary proceedings before the Collector had. The matter went to Letters Patent Appeal in Singarum Pillai v. Syed Ghulam Ghouse Sha [1910] 36 Mad. 438 the case relied on before the Revenue Officer. In that case the learned Judges say that they think the conclusion of the learned Chief Justice is correct and that as the patta, the landlord had already tendered, was in accordance with the judgment of the High Court and that as the fasli had already expired the landlord's only course was to sue under Section 9 of Act VIII of 1865 to enforce acceptance of the patta tendered. This he did and he had to await an adjudication under Section 10 of the Act and the learned Judges were of opinion:

that limitation runs from the date of that adjudication as it was only then that it can be said that the rent for the suit fasli was ascertained.

4. It is contended by the learned vakil for the respondents that the form of this judgment shows that the learned Judges in appeal, while accepting the conclusion of the learned Chief Justice, did not accept his conclusion that ascertained rent must mean something which had been ascertained under the provisions of the Rent Recovery Act. However that may be, it is asked with some pertinency by the vakil for the respondents why should the expression 'ascertainment of rent' be held to mean a suit to enforce acceptance of a patta. At first sight his objection sounds reasonable. It is further supported by the remarks in Duraisami Reddi v. Venkatachalam Pillai : AIR1915Mad756(2) where the suit was an inter-pleader suit brought by the tenants to ascertain whether they had to pay rent to the Government or to the landlord. Mr. Varadachariar contends that this has nothing to do with the present case. But in determining a matter which as far as I know is practically res integra I think the expression of opinion by the learned Judges of this Court may legitimately afford a guide to me in deciding this case. The learned Judges there say in reply to an argument that

where the right to the cess is in dispute between rival claimants the amount of rent is not an ascertained sum.

that if this argument is accepted, whenever rent is claimed by two members of the same family in opposition to each other, and although the question may arise incidentally, or by two rival landholders each claiming the right to himself, the period of limitation will not comni9nee till their dispute is finally adjudicated upon. We think this would be straining the language too far. They laid down that pleas of extenuation such as the bar of limitation have to be strictly construed ; consequently the only permissible plea must be found within the Article itself. In construing the opinion of the Privy Council they say

that in the opinion of their Lordships rent must be in suspense, and there must be proceedings to settle it.

5. In this case there has never been any dispute regarding the rate of rent and there were no proceedings to ascertain that rate. It may be said that an interpleader suit is a very different thing from a suit to enforce acceptance of a patta. But it seems to me clearly from the judgment of their Lordships in this case that it is only a matter of degree and that unless the summary suit is strictly a suit to ascertain the rate of the rent there will be no extenuation of limitation. It is admitted that the second clause in Schedule A No. 8 was inserted in consequence of the judgment of their Lordships in 27 Madras and it being therefore admitted that was a casa strictly of the ascertainment of the rate of rent, I think with -respect, the opinion of the learned Judges in 27 M.L.J. ought to be accepted on a matter of limitation.

6. It was argued by the respondents that the review ought not to have been allowed by the Revenue Officer in 1911 on the ground that the discovery of the authority in 36 Mad 438, does not constitute any reason under the Civil Procedure Code for allowing a review. I should have been inclined to agree with this if any evidence on the point had ever been taken. It is not referred to in the judgment of the learned District Judge from which the appeal is now taken. It is said that it is referred to in the grounds of appeal to the lower Court. The grounds are in print and Ground 3 is relied upon. The print reads as follows:

The lower Court ought not to have allowed the relief sought for by the plaintiff.

7. It is said that the word 'relief' is a misprint for 'review' This is the first time that this has ever been raised in the grounds of appeal. Appeal is made to Section 115 of the Code of Civil Procedure on the ground that the lower Court's exercise of a jurisdiction not vested in it was assumed in June 1911 or about 14-1/2 years ago. In a matter of discretion I am decidedly averse to interfere in the circumstances of this case.

8. I am therefore of opinion on the main question that the words 'ascertaining the rent' and 'by which the rent is finally ascertained' must be restricted to the actual rate of rent and I cannot from the observations relied on in the judgment of the learned ex-Chief Justice, say that any proceeding necessary to enable the land-lord to sue for rent is within the words of the Article. The appeal therefore fails and as I am assured that the same considerations apply to all they will all be dismissed with costs.


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