Tottenham and Banerjee, JJ.
1. This is an appeal by the plaintiff in the suit.
2. The suit was to recover arrears of patni rent for the years 1294, 1295, and part of 1296. It seems that the defendants, the patnidars, were out of possession for a part of that period. The.patni was sold under the Regulation at the instance of the plaintiff in the month of Jeyt 1294, and the plaintiff himself became the purchaser. That sale was set aside in the month of Pous 1295; and we are told that the reason why the sale was reversed was that the proceedings under the Regulation were taken not against actual living patnidars, but against their predecessor who was then dead. The plaintiff appears to have given notice to the defendants that they were at liberty to resume possession shortly after the reversal of the sale; and it appears that the plaintiff while in possession did collect some portion of the rent of each year.
3. The issues in the case were settled on the 8th February 1889, and the first issue raised was whether the defendants were or were not liable for the rent claimed.
4. We find, however, from the order-sheet, that on the 8th February the defendants' pleader informed the Court that they did not intend to dispute the amount of the arrears claimed, but they objected only to interest being charged upon those arrears. Subsequently in the month of June, on the application of both parties, the case was referred to arbitration in order that they might ascertain what amount the plaintiff had himself realized during the time he was in possession, and the arbitrators were directed to ascertain whether any portion of the rent due had become barred by limitation through any default on the part of the plaintiff. The arbitrators made their return showing the amount which had been collected by the plaintiff, and reporting that there was nothing to show that any portion of the arrears was barred by limitation owing to any default on the part of the plaintiff. Then on the case coming back to the District Judge, he dismissed the claim altogether for 1294 and 1295, and made a decree in favour of the plaintiff only for the arrears due for 1296 with interest on that amount. The reason why the Judge dismissed the claim for 1294 and 1295 was that he considered that 'as dispossession was plaintiff's own act, he cannot hold the defendants liable for rent for those years, or for any part of them, as his collections appear to have extended up to the end of 1295.' The District Judge appears to have considered that the plaintiff must be regarded as a wrong-doer and trespasser in respect of the years 1294 and 1295, because the sale which he had caused to be held under the Regulation was set aside for some defect in the proceedings.
5. It seems to us that this is not a sufficient reason for refusing the plaintiff the arrears which have been found to be actually due. In the case of Mussumat Ranee Surno Moyee v. Shooshee Mokhee Burmonia 12 Moo. I.A. 244 the Privy Council held that the zemindar cannot be said to have committed an act of trespass, because when she pursued the remedy, which was clearly competent to her if it had been regularly pursued, she inadvertently omitted one of the formalities prescribed by the Act. Their Lordships say they 'cannot treat this as an act of trespass or hold that in bringing this suit she is a person seeking to take advantage of her own wrong.' That was a case somewhat similar to this, for the zemindar had caused a patni to be sold under the Regulation, but had by inadvertence omitted the prescribed formalities. We think that in the present case too we ought to follow the decision of the Privy Council, and hold that the plaintiff was not a trespasser in this instance. But we think him still entitled to the actual arrears outstanding for the years in question, but not to interest upon the arrears of 1294 and 1295. Thus what we come to is practically what the defendants themselves expressed their willingness to accept in 1889 just after the issues had been fixed.
6. We accordingly decree this appeal to that extent, namely, in addition to the amount decreed to the plaintiff for 1296, he will also recover the amount outstanding for 1294 and 1295 and ascertained by the arbitrators. The amount already collected by the plaintiff will be deducted from the gross jama of these two years, and the balance will be paid, without interest, to the plaintiff; and interest on the amount decreed will run from this date at six per cent.
7. We notice that one of the respondents in this appeal was not represented by pleader.
8. The appellant will get costs in proportion to the amount decreed.