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Bibhuti Bhusan Ray and anr. Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 511 of 1962
Judge
Reported inAIR1973Cal262
ActsEvidence Act - Section 114; ;Calcutta Thika Tenancy Act, 1949 - Section 22(2)
AppellantBibhuti Bhusan Ray and anr.
RespondentState of West Bengal
Advocates:C.C. Ganguly and ;Nirmala Kumari Chaturvedi, Advs.
Excerpt:
- .....of a sum of rs. 2177-8-3 pies.2. the ease of the plaintiff is that, one mahammad ramjan is a thika tenant under the plaintiffs in respect of two plots of land known as municipal huts nos. 6 and 17 appertaining to the premises no. 145-b, chittaranian avenue, calcutta, belonging to the plaintiffs. the said tenant deposited rents and taxes in the years 1953, 1954 and 1955 in the court of the registrar presidency small cause court. calcutta acting as the thika controller, calcutta, to the credit of the plaintiffs. the plaintiffs made two applications before the thika controller pravina for withdrawal of. the rents and taxes deposited by the said tenant in respect of municipal huts nos. 6 and 17. on february 4, 1956. the thika controller paid the plaintiffs certain sums of money on.....
Judgment:

Murari Mohan Dutt, J.

1. This appeal is at the instance of the plaintiffs and it arises out of a suit for recovery of a sum of Rs. 2177-8-3 pies.

2. The ease of the plaintiff is that, one Mahammad Ramjan is a thika tenant under the plaintiffs in respect of two plots of land known as Municipal Huts Nos. 6 and 17 appertaining to the premises No. 145-B, Chittaranian Avenue, Calcutta, belonging to the plaintiffs. The said tenant deposited rents and taxes in the years 1953, 1954 and 1955 in the Court of the Registrar Presidency Small Cause Court. Calcutta acting as the Thika Controller, Calcutta, to the credit of the plaintiffs. The plaintiffs made two applications before the Thika Controller pravina for withdrawal of. the rents and taxes deposited by the said tenant in respect of Municipal Huts Nos. 6 and 17. On February 4, 1956. the Thika Controller paid the plaintiffs certain sums of money on account of rents and taxes deposited by the said tenant but did not pay the sum of Rs. 1315-6-6 pies being the aggregate amount of the sums deposited by the said tenant as per particulars mentionedin the plaint in respect of Municipal Hut No. 6 end also a sum of Rs. 862-1-9 pies being the aggregate of the sums of money deposited by the said tenant as per particulars mentioned in the plaint in. respect of Municipal Hut No. 17. The plaintiff, therefore claims a total amount of Rs. 2177-8-3 pies. The present suit was instituted by the plaintiffs after the service of a notice under Section 80 of the Code of Civil Procedure. The defendant, the State of West Bengal, entered appearance and contested the suit by filing a written statement. The defendant in its written statement admitted the deposit of the sums of money in the years 1953, 1954 and 1955 by the said tenant as mentioned in the plaint. It is, however, alleged that the sums which were deposited were duly forwarded to the plaintiffs by postal money orders under Section 20 (1) of the Calcutta Thika Tenancy Act by the Thika Controller. It is, further, alleged that some of the money orders out of the aforesaid remittances were returned undelivered and duly kept in deposit in the Controller's office. As regards other money orders, the defendant, after inspection of the Controller's office records end after enquiring from the postal department, could not ascertain whether they had been Paid to the plaintiffs, as the Controller did not receive intimation of acknowledgment or non-delivery in that behalf. It is admitted that the said Mahammad Ramian is a tenant of the plaintiffs in respect of Municipal Hut No. 17. It is, however denied that the said Mahammad Ramjan is a tenant of the plaintiffs in respect of Municipal Hut No. 6. It is alleged that the said Mahammad Ramjan is a tenant of the plaintiffs in respect of Municipal Hut No. 7 end not Municipal Hut No. 6. The defendant denies the title of the plain-tiffs to the Municipal Hut No. 6. The defendant admits that the plaintiffs are entitled to the payment of a total sum of Rs. 478/- on account of rents and taxes deposited by the said Mahammad Ramian which were sent to the plaintiffs, but which came back undelivered. It is contended by the defendant that the suit is not maintainable and that the plaintiffs' claim is barred by limitation.

3. The learned City Civil Court Judge came to the finding that the said Mahammad Ramjan was also a tenant of the plaintiffs in respect of Municipal Hut No. 6 end that he was never a tenant of the plaintiffs in respect of Municipal Hut No. 7 as alleged by the defendant. The learned Judge, further, found that the plaintiffs were entitled to Rs. 2177-8-3 pies from the defendant minus a sum of Rs. 478/- admitted by the plaintiffs to have been paid by the defendant during the pendency of the suit. In spite ofthe said finding, the learned Judge dismissed the suit on two grounds. The first ground was that the Thika Controller forwarded the amounts deposited by the said tenant under Section 20 (1) of the Calcutta Thika Tenancy Act, by postal money orders excepting a sum of Rs. 154-2-3 covered by the deposit, challan No. 1465-A. The learned Judge took the view that after the Thika Controller remitted the amount by postal money orders in terms of Section 20 (1). his duty came to an end. The learned Judge found that no such amounts came back to the office of the Thika Controller as having been refused by or undelivered to the plaintiffs. On that ground, the learned Judge held that the defendant was not liable for the amount claimed by the plaintiffs excepting the said sum of Rs. 478/- which has been paid to the plaintiffs by the defendant during the pendency of the suit. The second ground was that the suit was not maintainable in view of the provision of Section 22 (2) of the Calcutta Thika Tenancy Act. On these two grounds the learned Judge, as aforesaid, dismissed the plaintiffs' suit. Hence this appeal by the plaintiffs.

4. In the written statement, the defendant admitted the deposit of the amounts on account of rents and texes by the said Mahammad Ramian as per the details mentioned in paragraph 4 of the plaint. It appears from the money order receipts. Exts. A to A/28, that excepting a sum of Rs. 154-2-3 pies covered by the deposit challan No. 1465-A dated March 15, 1954. all the amounts were remitted by the Thika Controller to the plaintiffs by postal money orders. The Question is whether the said amounts which were sent by postal money orders on different dates were received by the plaintiffs. The plaintiffs No. 1. Bibhuti Bhusan Ray was examined. He says that the amount in suit was not remitted to the plaintiffs by money orders and they did not receive any such money orders. It has been admitted by him that after the filing of the suit the defendant paid the plaintiffs the said sum of Rs, 478/-. There is no evidence to show that the amounts which were sent to the plaintiffs by postal money orders. Exts. A to A/28, reached the plaintiffs. The acknowledgment re-cepits have not been produced by the defendant. The learned Judge has believed the evidence of the plaintiff No. 1 Bibhuti Bhusan Roy. I do not, also, see any reason to disbelieve his evidence. I, therefore, hold that the plaintiffs did not receive the amount sent by postal money orders, Exts. A to A/28.

5. The next question is whether the money orders came back undelivered. The defendant has not examined any witness nor has the defendant produced any record to show that the amounts sent by postal money orders were not. sent back by the postal authorities. As aforesaid the amounts were sent on different occasions on different dates. It has been found that the amounts were not delivered or paid to the plaintiffs. In case of non-delivery, the amounts would be re-delivered to the sender, that is. the Thika Controller. It has been alleged in the written statement that the Controller did not receive any intimation of acknowledgment or non-delivery in that behalf. By this statement, the defendant wants to say that the amounts which were remitted by postal money orders did not come back to the Thika Controller. The defendant has not, however given any evidence in this regard. As aforesaid, no record has been produced to show that the amounts were not received back by the Controller. In the circumstances, it may be presumed that in the normal course of business the postal authorities returned the amounts to the sender, namely, the Thika Controller. The defendant has not made any attempt to rebut this presumption. The defendant has not also Given any evidence showing that any enquiry was mode by the Controller from the postal authorities as to the whereabout of the amounts remitted by the postal money orders. In the cir-cusmstances. it cannot but be held that the amounts were returned back to the Thika Controller. The plaintiffs are, therefore entitled to withdraw the said amount from the Thika Controller, or in other words the defendant is liable to pay the amount to the plaintiffs.

6. It has been held by the learned Judge that the suit is barred by Section 22 (2) of the Calcutta Thika Tenancy Act. Section 22 (2) of that Act is as follows :--

'22 (2). No suit, prosecution or other legal proceeding shall be instituted against the Crown or against any officer of the Crown in respect of anything done by the Controller receiving a deposit under Section 17 or Section 18 ; but nothing in this Act shall prevent any person entitled to receive any amount so deposited from recovering the same from any person to whom it has been paid under Section 20 pr Section 21.' In my opinion, the provision of Section 22 (2) has no manner of application to the facts and circumstances of the case. The suit is not in respect of anything done by the Controller receiving a deposit under Section 17 or Section 18. But it is a suit for money deposited by the tenant with the Controller which the Controller is bound to pay to the plaintiffs under Section 20 (3) of the Act. For the reasons aforesaid. I hold that the suit is not barred under Section 22 (2) as held by the learned Judge. It may be stated here, that it has been held by the learned Judge that no part of the claim of the plaintiffs is barred by limitation. In my opinion, therefore. the plaintiffs must succeed in this appeal.

7. In the result, the judgment and decree of the learned Judge are set aside and the suit is decreed with costs for the sum of Rs. 2,177.52 minus Rs 478 i.e., for Rs. 1,699.52. This amount will bear interest at the rate of 6 per cent, per annum from the date of the suit till payment. The defendant is granted three months time for payment of the amount under the decree to the plaintiffs. In default the plaintiffs shall be entitled to recover the amount under the decree by execution of the same. The appeal is allowed but as none appeared on behalf of the respondent the State of West Bengal, at the hearing of the appeal there will be no order as to costs in this appeal.

8. After hearing the learned Advocate for the appellants, the judgment is modified to this extent that in default of payment of the amount under the decree by the defendant to the plaintiffs within the specified time, the plaintiffs shall be entitled to recover the amount by execution of the same subject to the provisions of Section 82 of the Code of Civil Procedure.


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