1. 1901, April 24. This is an appeal against a decision of the District Judge of Gaya, dated the 17th of December 1898.
2. The suit out of which the appeal arises is one brought under Section 140 of the Bengal Tenancy Act for compensation of wrongful distraint. The facts of the case are these: The defendant, the landlord of the plaintiffs, distrained the crops of the plaintiffs' holdings for (i) a sum of Rs. 994-6-6 as the value of the landlord's share of the crops, for the landlord asserts that the lands were held on the bhaoli system; (ii) for a sum of Rs. 248-9-6 as 'damages' at 25 per cent.; and (iii) for Rs. 31-1-3 on account of road cess and public works cess. In all, the sum of Rs. 1,275-7-3 was claimed by the landlord.
3. The contentions of the plaintiffs are, that they did not hold these lands on the bhaoli system, but that they were liable to pay nugdi rents; that their crops were distrained for a much larger sum than was due from them; that the defendant had on right to distrain their crops for 'damages' at 25 per cent. and that, under these circumstances, the distraint was not permissible; and they accordingly sued for compensation.
4. The Court of First Instance held that the distraint was illegal for several reasons; and the Munsif accordingly gave the plaintiffs a decree for compensation, which he estimated at Rs. 490.
5. On appeal to the District Judge that officer set aside the decree of the first Court. He held that the distraint was permissible under the provisions of Section 121 of the Bengal Tenancy Act. He said in the first place that the plaintiffs had not been able to show, that they held any lands on a nugdi rent and that therefore they had not succeeded in showing that the sum of Rs. 994, at which the landlord estimated the rent due to him from the plaintiffs in his application for distraint, was incorrect. In the next place, the District Judge held that, although strictly speaking, the landlord was not entitled to distrain for damages at Rs. 25 per cent., yet he might have obtained a decree for this amount in a regular suit, and that, therefore, regarding the damages as interest claimed by the landlord, the distraint was not illegal. Then, he held that there was no irregularity, as decided by the Munsif, in the landlord distraining for the rent of four holdings, but found that the plaintiffs had not proved that the landlord had distrained for the rent of four holdings, and that, even if this were so, he considered that this was permissible under the provisions of Section 121 read with Sub-section 9 to Section 3 of the Bengal Tenancy Act. Finally dealing with the question of compensation he said: 'No compensation is due to the ryots, as all they could get by winning this case would be the return of Rs. 280 realized from them by one process, only to be realized again by another process, to wit a regular suit.'
6. The plaintiffs new appeal and on their behalf three pleas have been urged before us, namely, first that the landlord's application for distraint was contrary to law, inasmuch as he asked for damages at 25 per cent.; secondly that it is also contrary to law, because the distraint was for the rent of several holdings, and thirdly, that the Judge is wrong in holding, that the plaintiffs' lands were held on the bhaoli system.
7. We think we need say very little on the third of these points, because it appears to us that the question as to whether the land is held on the nugdi or the bhaoli system is a question of fact, and the District Judge has clearly held that the plaintiffs have failed to shew that they held nugdi, and that therefore they have not succeeded in showing, that the Rs. 994 for which the defendant distrained their crops is not the correct amount due from them.
8. With regard to the 1st and 2nd grounds of appeal, we think that they are sound. It appears that the landlord was not entitled on his application under Section 121 to distrain for 'damages.' He was only entitled to distrain for the rent of the holding in the preceding agricultural year (not for the rent of the 'current year' as the District Judge says, but for the rent of the holding for the year preceding the current year) and, under Clause (d) to Section 122, he was also entitled to distrain for the interest due upon that amount, if he chose to claim any. Under Section 67 of the Bengal Tenancy Act the interest due on arrears of rent is only 12 per cent. and can only run 'from the expiration of that quarter of the agricultural year, in which the instalment falls due.' It may be that the landlord, if he had chosen to bring a regular suit for arrears, might have got 25 per cent. damages, but he was not entitled to damages at all, unless he obtained a decree for them in a regular suit. He was certainly not entitled to distrain for damages at this rate or for damages at all, and all he could do under Sections 121 and 122, Clause (d) was to distrain for interest at 12 per cent., in addition to the rent of the holding in the preceding agricultural year. Therefore, we must come to the conclusion that the application made by the landlord was to this extent not permissible under the Bengal Tenancy Act.
9. Then, with regard to the second plea raised by the pleader for the appellant, it seems to us that it is perfectly clear that under Sections 121 and 122 the landlord cannot by one application apply for distraint for the rent of more than one holding. Throughout the provisions of these two sections the holding, for the rent of which distraint may be made, is always referred to as 'the holding' and not as a 'holding or holdings.' This seems to point to the conclusion that the landlord can only distrain in one and the same application for the rent of one holding and the reason is plain; for it would not be fair to sell up the crops of one holding for the rent due to another. No doubt the Judge in this case has, as pointed out by learned Counsel for the respondent, made the following remark, namely, 'as regards the current distraint on different parcels, it does not appear to me to be proved, that the plaintiffs have separate holdings in each village.' If the Judge had said no more we could have found no fault with his judgment on this point, because undoubtedly the question whether the plaintiffs hold one or more holdings and, whether the landlord distrained the crops of one or of more than one holding, are questions of fact. But unfortunately the Judge goes on to say, 'nor, if they had, does Section 121 read with Sub-section (9), Section 3 of the Bengal Tenancy Act seem to preclude distraint on several holdings under the same landlord, provided rent is due on the whole.' Here the Judge seems to us to be wrong. The Judge's reference to Sub-section 9 of Section 3 of the Act no doubt relates to the fact that, as defined in that sub-section, one holding may consist or several parcels of land. If then the Judge had said that Section 121 read with Sub-section 9 of Section 3 of the Act does not preclude distraint on several parcels forming one holding, he would have been perfectly right. But there is nothing in Sub-section 9 of Section 3 read with Section 121, which seems to give a landlord any authority to distrain for the rent of several holdings.
10. On these two points, therfore, we think that the judgment of the District Judge cannot be sustained.
11. Learned Counsel for the respondent, however, argues that, even admitting that the judgment is wrong on these two points yet it is unnecessary for us to interfere and remand the suit to the Lower Appellate Court for a fresh decision, because the Judge has dealt with the question of compensation and has come to the conclusion that the plaintiff are not entitled in this suit to any compensation at all. Now, undoubtedly, if the Judge had dealt with the question of compensation and had done so on correct principles, we would have been unable to interfere, as the question as to the amount of compensation is a question of fact. But it does not appear to us that the Judge has really meant to deal with the question of compensation. It appears to us that he has dealt with the question hypothetically and has held that, even assuming that the application of the defendant for distraint was not permissible, yet he would not be disposed to give the plaintiffs compensation in this case, because, all they could get by winning this case would be the return of the Es. 280 realized from them by one process, only to be realized again by another process, to wit, a regular suit. Here the learned Judge is wrong again. If the plaintiffs had established to the satisfaction of the Lower Appellate Court, that the application of the landlord was not permissible by law (and they have established to our satisfaction that it was not permissible in one respect) the plaintiffs, would not necessarily be entitled to the return of the Rs. 280 realized by distraint from them. That would not be the amount of compensation they would be entitled to, nor constitute the measure, by which their damages should be estimated. They would not be entitled to the return of the Rs. 280, unless they showed that this amount had been realized from them in excess of the amount really due from them. If the amount of rent really due was more than Rs. 280, and, if the landlord showed that he had given them credit for Rs. 280, and was not going to sue for that amount, they would not be entitled to the return of the Rs. 280 at all. What they are entitled to under Section 140 is compensation for damage done to them, and in such a suit as this, they must show how they have been endamaged. Now the amount, which they may be entitled to as damages, would seem to consist of two sums: (i) Any excess amount realized from them: and (ii) any amount to which they might be entitled owing to the way in which their crops have been sold off.
12. Learned Counsel for the respondent has argued that in this case it is impossible for the plaintiffs to recover any compensation at all, inasmuch as, owing to their having failed to show that their rents were payable in money, they can never establish, that there was any excess amount exacted from them and they cannot show that the amount Rs. 994, for which the landlord distrained their crops, was not really due from them. That may be quite true, but there remains the second kind of damages, to which they may be entitled in the suit, namely, damages for the crops having been sold in such a way as not to realize their full value. Probably the plaintiffs have not thought of their being entitled to damages on this ground, and they have probably adduced no evidence on this point. If we were entitled to go into evidence in this case, we could perhaps decide it without a remand. But in second appeal, we cannot deal with questions of fact. We must therefore remand this case to the Lower Appellate Court for a fresh decision, having regard to these observations. We feel bound to do this, seeing that the Judge has not apparently had in view the principles upon which compensation in such oases as the present is to be computed.
13. The case is accordingly remanded to the Lower Appellate Court for a fresh decision upon the evidence on the record, having regard to the above observations.
14. The costs will abide the result.
15. This decision will also govern second appeal No. 319 of 1899.