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Uday Chand Mahatab Vs. Dibakar Sen and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 192 of 1946
Judge
Reported inAIR1950Cal134,54CWN307
ActsBengal Tenancy Act, 1885 - Schedule - Article 2; ;Limitation Act, 1908 - Schedule - Article 110; ;Tenancy Law
AppellantUday Chand Mahatab
RespondentDibakar Sen and anr.
Appellant AdvocateSarat Kumar Mitra and ;Amiya Kumar Mukerjee, Advs.
Respondent AdvocateSiddheswar Chakravarty, Adv.
DispositionAppeal allowed
Cases ReferredBurnamoyi Dassee v. Burmamoyi Choudhurani
Excerpt:
- .....question which arises for decision in this appeal is whether in a suit for recovery of arrears of putni rent the provisions of article110, limitation act or those of article 2 of schedule iii, bengal tenancy act will be attracted.2. the plaintiff filed the suit on the 15th april 1944 for the realisation of arrear putni rent due before the said putni was sold under the putni regulation on 1st jaistha 1348 b. s.3. the defence was that a portion of the claim was barred by limitation as the plaintiff was entitled to claim arrears which had accrued due within three years of the filing of the suit. both the courts have disallowed the claim for the period antecedent to the chaitra kist of 1347 i. e. mid-april, 1941 holding that this suit is governed by article110, limitation act. hence this.....
Judgment:

R.P. Mookerjee, J.

1. The only question which arises for decision in this appeal is whether in a suit for recovery of arrears of putni rent the provisions of Article110, Limitation Act or those of Article 2 of Schedule III, Bengal Tenancy Act will be attracted.

2. The plaintiff filed the suit on the 15th April 1944 for the realisation of arrear putni rent due before the said putni was sold under the Putni Regulation on 1st Jaistha 1348 B. S.

3. The defence was that a portion of the claim was barred by limitation as the plaintiff was entitled to claim arrears which had accrued due within three years of the filing of the suit. Both the Courts have disallowed the claim for the period antecedent to the Chaitra Kist of 1347 i. e. mid-April, 1941 holding that this suit is governed by Article110, Limitation Act. Hence this second appeal on behalf of the plaintiff.

4. We shall consider in the first instance the argument advanced on behalf of the appellant that Article2 of Schedule III, Bengal Tenancy Act would apply in this case.

5. Section 195, Clause (e) saves the laws relating to putni tenures from the operation of the Bengal Tenancy Act subject to certain limitations. The relevant portion of the section is in the following terms:

Nothing in this Act shall affect

(e) any enactment relating to putni tenures in so far as it relates to those tenures except that

(i) the provisions of Section 67 and of Clause (i) of Sub-section 1 of Section 178 shall apply to all putni tenures and,

(ii) the expression 'Khudkast raiyat or resident and hereditary cultivator' in Sub-section (3) of Section 11 the Bengal Putni Taluk Begulation 1819 shall be deemed to include all raiyats having the right to occupancy.'

Where the Putni law is silent, the provisions of the Bengal Tenancy Act may be attracted for supplementing those provisions. There is no provision in the Putni Regulation as to the realisation of rent beyond one year. It was therefore held in Satyasankar v. Monmohan, 43 I. C. 996: (A. i. r. (5) 1918 Cal. 265), Durga-prosad v. Brindaban, 19 Cal. 504 and Abdul Gaffar v. F. B Downing, 5 pat. 415 at p. 430: (A. I. R. (13) 1926 pat. 465) that the Zamindar will be entitled to bring a suit for the realisation of the arrears as under the provision contained in the Bengal Tenancy Act.

6. Section 65 of this Act, practically similar to Sections 11 and 15, Patni Regulation, does not contradict Section 17 of that Regulation. Therefore Section 65 applies to putni tenures: Pearymohan v. Sreeram Chandra, 6 C. W. N. 794, Basant Kumar v. Khulna Loan Co., 20 C. L. J. 1: (A. I. R. (2) 1915 Cal. 24).

7. Although there are clear decisions to the effect that in spite of the provisions contained in the Patni Regulations, it is open to the landlord to file suits under the provisions contained in the Bengal Tenancy Act for the realisation of arrears, there has recently been an expression of doubt as to the correctness of those decisions. This Bench as constituted is not entitled to go behind the Bench decisions of this Court. I would, however, indicate the nature of the difference and the foundation, if any, in support of either contention.

8. Section 195, Clause (e), definitely attracts Sections 67 and 178 (1) (i), Bengal Tenancy Act for all patni tenures. A long line of decisions, some of which are referred to above, support the view that provisions contained in the Bengal Tenancy Act so far as they did not contradict the specific provisions as in the Patni Regulation, are attracted so far as Putnis are concerned.

9. The point which arises in the present case is almost similar and founded on the same set of facts as is Burnamoyi Dassee v. Burmamoyi Choudhurani, 23 Cal. 191. In that case, the Patni Taluk had been sold and purchased by the landlord on 14th May 1891, but the entire amount due as arrears were not realised from out of the sale proceeds. The landlord filed a suit for the balance arrear of Patni rent as upto the end of the year 1297 B. S, i. e., 12th April 1891. Sir Comer Petherem C. J. and Beaverly J. held that the suit was governed by the provisions of the Bengal Tenancy Act as contained in Section 184, and Schedule III, Article 2 (d), the period of limitation being three years from the last day of the Bengali year in which the arrear fell due.

10. The view that suits for recovery of Patni rent come within the purview of the Bengal Tenancy Act and are governed by Schedule III there of, finds support from Basanta Kumar Bose v. Khulna Loan Co., 19 C. W. N. 1001 : 20 C. L. J. 1 : (A. I. R. (2) 1916 Cal. 24), Wazed Ali Khan v. Brojendra Kumar : AIR1933Cal90 . A contrary view has been expressed in Jagannath v. Mohiuddin Mirza, 37 Cal. 747: (6 I. C. 371), and Alauddin Ahammed v. Tomizuddin : AIR1937Cal587 . An attempt was made by Biswas J. in the last of the cases mentioned above, to distinguish the earlier decisions in the view that either some of the opinions were merely obiter or that the learned Judge dissented from the earlier view. It would have been more satisfactory and in accordance with the Rules if the question had been referred to a larger Bench, if the learned Judge wanted to lay down a proposition contrary to the one which had been held in a long series of cases from at least 1892. Reliance is placed by Biswas J. on the following observation by the High Court which was affirmed by the Judicial Committee in Satya Niranjan Chakravarty v. Suraju Bala Debi :

'This was the creation of a tenancy for the purpose of realisation of rent from the cultivating tenants and therefore the provisions of the Transfer of Property Act apply to it.'

11. This observation was made while interpreting the provisions of the particular Ijaraf Patta and there is no reference or discussion in the short judgment delivered by the Judicial Committee to this stray sentence in the judgment of the High Court. Consideration which may generally apply in the case of an ordinary Ijara Patta, are not always relevent when the suit is based on a Patni settlement. The lease in the case before Biswas J. was that of a registered Ijara lease for five years. The attempt made by the learned Judge to explain away or even to dissent from the earlier decisions relating to Patni tenures, are with due respect not justified or even supported by the reasons given.

12. Another more recent decision and relied upon on behalf of the defendants is that of the Official Trustee of Bengal v. Bejoy Chand Mahatab, : AIR1942Cal222 . The facts in this case, however, are not only peculiar but altogether different from those in the present case. A Patni was sold under the Patni Regulation for arrears of rent for a particular year and purchased by a third party. That sale was set aside and the Patnidar was restored to possession. The Zamindar thereafter filed a suit for the recovery of the arrears of rent and cess for which the Patni had been previously sold, along with arrears for a subsequent period. The defence was that the claim for the arrears for which the previous Patni sale had been held was barred by limitation. The only question argued before the Court was limited to the question whether Article 110 or Article 115 of the Limitation Act was attracted. Dr. Basak appearing on behalf of the respondent in that case had conceded that the suit was governed by Article 110. In the view that the Patnidar had recovered the Patni with mesne profits from the auction purchaser, it was only equitable that he should pay the amount of rent which was in arrears. The amount of rent did not accrue until the sale of the Patni had been set aside and it was accordingly held that the statute should not run until that time. The Court was, therefore, not called upon to express any opinion on the point which is now in issue in the present case.

13. I respectfully agree with the view expressed by this Court in Burnamoyi Dassee v. Burmamoyi Choudhurani, 23 Cal. 191 and must hold that the relevant provisions for determining the period of limitation in the present case are those to be found in Article2 of Schedule III, Bengal Tenancy Act. The appeal is accordingly allowed and the suit decreed with costs in this Court.


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