1. These two appeals arise out of a suit for rent of a putni taluk Lat Sajnosh held by the defendants at a rent of Rs. 6,928.
2. The putni taluk was sold under the provisions of Regulation VIII of 1819 for the arrears of rent for the year 1321 on the 15th May, 1915, and purchased by one Bejoy Krishna Mukherjee. The defendants sued to set aside that sale on the 13th May, 1916. The suit was decreed on the 4th October, 1917, by the trial Court. The sale was set aside and the defendants were held entitled to possession. The defendants actually got possession in Assin 1324 B.S. corresponding to October 1917. There was an appeal by the purchaser but the decree of the trial Court was confirmed by the High Court on the 12th August, 1919.
3. The present suit was instituted on the 20th March, 1920. It was originally for rent of 1323, and for the kists up to Falgun 1326 together with cesses. Subsequently on the 4th March, 1921, there was an application for amendment of the plaint, and the arrears of rent for the year 1322 who were included in the claims. There was also an application for amendment in respect of the description of the defendants as shebaits of certain deities who were the owners of the putni. The amendments, were allowed.
4. The defence was that the claim for 1322 was barred by limitation, and that for 1323 although filed in time was also barred, because at the time of the amendment in March, 1921, more than three years had elapsed from the date on which the rent for 1323 became duo There were also some other defences by the defendants which will be noticed hereafter.
5. The Court below was of opinion that the claim for 1322 was barred by limitation; but that the claim for 1323 was not so barred, and gave a decree for rent for 1323 without interest and for rent and cesses for 1326 up to the Falgun kist. The plaintiff has accordingly preferred appeal No. 227 of 1922 in respect of the claim for rent of 1322, and interest for the year 1323. Appeal No. 291 of 1922 is by the defendants and is directed against the entire claim on the grounds that the deities, the owners of the putni taluk had not been sued within the period of limitation and that a suit does not lie against some of the heirs of the tenants and also on other grounds.
6. Two questions arise for determination in the plaintiff's appeal. The first is whether limitation in respect of the rent for the year 1322 should be taken to run from the 12th August, 1919, when the sale was finally set aside by the High Court upon the principle laid down in the case of Ranee Surno Moyee v. Shooshe Mohhee Burmonia (1868) 12 M.I.A. 244. In that case the sale took place under the Putni Regulations for realisation of certain arrears of rent, and out of the proceeds of the sale the dues to the zemindar were satisfied. The putnidar having sued to set aside the sale, it was set aside, and the zemindar, having brought a suit for recovery of rent after the Court had set aside the sale, a question arose as to whether limitation for the recovery of rent should run from the end of the year in which that rent became due or only after the sale had been set aside. The Judicial Committee observed.
'That the cause of action accrued at the time at which, the sale having been set aside, the obligation to pay this sum of money received; and whether that time be taken to be the date of the first decree or the date of the final decree, the present suit would, in either case, have been brought in time....' 'Their Lordships' view of the case is this : that, upon the setting aside of the sale, and the restoration of the parties to possession, they took back the estate, subject to the obligation to pay the rent; and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place....'
It is clear, that until the sale had been finally set aside, she was in the position of a person whose claim had been satisfied; and that her suit might have been successfully met by a plea to that effect.
7. The learned Subordinate Judge distinguished the present case from the case of Ranee Surno Moyee (1863) 12 M.I.A. 244 on the ground, that in that case the claim was for rent for the period in respect of which the proceedings under Regulation VIII had been held and the claimant of rent was, until the sale was set aside, in the position of a person whose claim had been satisfied. The present claim is not for rent of 1321 in which the proceedings under Regulation VIII were taken, but for 1322 and subsequent years. That, no doubt, is so.
8. It has been contended on behalf of the plaintiff-appellant that the principle on which the case of Ranee Surno Moyee (1868) 12 M.I.A. 244, was decided is, that on the setting aside of the sale, the restoration of the putnidars took place subject to the obligation to pay the rent, and that therefore the particular arrears of rent claimed in the suit must be taken to have become due in the year in which that restoration to possession took place. We do not think that this contention help the appellant in the present case. The defendants, the former putnidars, were restored to possession in October, 1917. According to the decision in the case of Ranee Surno Moyee (1868) 12 M.I.A. 244, the cause of action must be taken to have become due when the restoration to possession took place. The present suit, no doubt, was brought on the 20th March, 1920, when three years had not elapsed from the 4th October, 1917. But there was no claim for the rent of 1322 in the plaint filed on the 20th March, 1920. That plaint was afterwards amended on the 4th March, 1921, more than three years after the defendants were restored to possession. It is to be observed that after the sale was set aside by the trial Court on the 4th October, 1917, and the defendants were restored to possession, the plaintiff took proceedings under the Putni Regulations for realisation of rents for the years, 1324 and 1325.
9. It has been contended by the learned vakil for the appellant that the proceedings under the Putni Regulation for the realisation of rents may be taken against the tenure and need not be directed against any particular person on the authority of the case of Bijoy Chand Mahtab v. Ashutosh Chukerbutty A.I.R. 1921 Cal. 494. That may be so. But there was nothing to prevent the plaintiff from suing the defendants for rents for the years 1322 and 1323, when the latter had got the sale set aside and were restored to possession. It is further contended that although in October, 1917, the sale had been set aside by the trial Court, there was an appeal preferred by the purchaser, and the decree setting aside the sale had not become final. The case of Bajinath Sahai v. Ramgut Singh (1896) 23 Cal. 775, has been relied upon in support of this contention. In thab case the Board of Revenue discharged an order of the Commissioner, dated 25th January, 1884, which had confirmed a sale by the Collector in 1882, but afterwards on 21st August, 1886, discharged its own order and revived that of the Commissioner. It was held that the confirmation of sale dated only from 21st August 1886 and that a suit brought in July, 1887, to set aside the sale was not barred by Act XV of 1877, Article 12. But under that article the limitation runs from the time 'when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought.' In that case therefore the plaintiff was entitled to count the period of limitation from the date when the sale became final and conclusive. That is the starting point laid down in the Limitation Act itself. In the present case there is no such provision in the Limitation Act for counting the period from the date of the final judgment setting aside the sale held under the Putni Regulation. The period for instituting a suit for rent would run from the last day of the year in which the rent became due, except under circumstances, whereas, in Surno Moyee's case (1868) 12 M.I.A. 244, the claim for rent could be treated as having been satisfied, and no suit for rent could have been maintained so long as the sale remained unreversed.
10. In the case of Huro Pershad Roy v. Gopal Das Dutt (1882) 9 Cal. 255, it was held that after the expiration of the period prescribed by Section 29 of the Bengal Act VIII of 1869, a plaintiff suing for arrears of rent cannot insist on the pendency of another suit, brought by him for possession of the land, as preventing limitation from running where there has been no time during which such rent could not have been recovered if he had acted on his right of suing for it. Referring to the case of Ranee Surno Moyee v. Shoshee Mokhee Burmonia (1868) 12 M.I.A. 244, their Lordships pointed out that the claimant of rent was, until the setting aside of the sale that had taken place, in the position of a person whose claim had been satisfied. The right to sue in that case had been suspended; and it was, therefore, distinguishable from the present.'
11. In the present case there is no doubt that the sale had been set aside in October 1917, and the defendants were restored to possession at that time. It is true that there was an appeal pending; but the question is whether the plaintiff was entitled, as a matter of right, to the period of limitation from the date on which the appeal preferred by the purchaser was disposed of or whether he ought not to have sued the defendants for rent after the sale had been set aside and after they were restored to possession.
12. We do not think that the plaintiff is entitled to wait merely because there was a possibility of the decree of the trial Court being set aside by this Court, when the defendants had actually got into possession of the putni. It appears from the evidence that the question of profits of the putni, was settled amicably between the putnidars and the purchaser. That being so, the defendants could not possibly resist the plaintiff in any suit which might be brought by him for recovery of rent for the years 1322 and 1323.
13. We have been referred to some other cases; but the question of suspension of the period of limitation, or the question when the cause of action actually arose,, which was decided in those cases, has no direct bearing on the question which we have to decide in the present cases. In the case of Bassu Kuar v. Dhum Singh (1888) 11 All. 47, there was an arrangement between the debtor and the creditor for sale of certain land under which the creditor was to set off a portion of the price of the land : against his dues. A suit for specific performance of the contract of sale brought by the debtor failed eventually on appeal to the High Court, and it was held that the claim for recovery of the debt, though sued for more than three years after it became due, but within three years of the decree of the High Court, was not barred. Their Lordships in disposing of the case observed at page 56.
It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing, his property if he does not. And it would be a lamentable state of the law if it were found that a debtor who for years has been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all. In their Lordships' view, the decree of the High, Court in 1884 brought about a new state of things and imposed a new obligation on Dhum Singh.
14. This case was followed in the case of Amma Bibi v. Udit Narain Misra (1908) 31 All. 68. In the case of Rangayya Appa Rao v. Bobba Sriramulu (1907) 27 Mad. 143 which was a case under the Madras Rent Recovery Act, it held that as long as proceedings ware 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 arrear of rent can be said to have become due within the meaning of the Limitation Act. So that, that also was a case in which the question was, when did the cause of action accrue. As regards the case of Nrityamoni Dossi v. Lakhan Chandra Sen A.I.R. 1916 P.C. 96 we do not think that that case has any direct bearing on the point we have to decide. In that case two out of three brothers were dispossessed of their shares in certain properties by the third brother. One of the brothers who ware dispossessed brought a suit for recovery of possession of his share as against the other two brothers as defendants. One of the defendants supported the plaintiff, and sat up his own right to one-third share in the property. It appears that an issue was raised as between the co-defendants as to whether the defendant who supported the plaintiff was entitled to a certain share. The Court actually passed a decree, not only in favour of the plaintiff, but also declared that the defendant had one-third share. On appeal the decree of the trial Court in favour of the plaintiff was upheld, but was sot aside so far as the defendant was concerned. It was in these circumstances that this Court and the Judicial Committee held that limitation was suspended from the date of the decree of the first Court to the date when that decree was sot aside on appeal. The Judicial Committee observed as follows:
Limitation would no doubt run against them from that time. But it would equally without doubt remain in suspense whilst the plaintiffs wore bona fide litigating for their rights in a Court of justice. They had in the suit of 1896 before Justice Henderson associated themselves with the plaintiffs in that action and had asked for an adjudication in those proceedings of their rights. A distinct issue was framed in respect of their claim to which no objection seems to have linen made by the appellant. It was an effective decree made by a competent Court and was capable of being enforced until set aside. Admittedly, if the period during which the plaintiffs were litigating for their rights is deducted, their present suit is in time. Their Lordships are of opinion that the plea of limitation was rightly overruled by the High Court.
15. As stated above the defendants were restored to possession of the putni in October, 1917, which was more than 3 years before the 4th March, 1921, and there was nothing to prevent the plaintiff from suing them for rent of 1322. We are accordingly of opinion that the claim for the year 1322, is barred by limitation.
16. The second point is whether the plaintiff is entitled to interest on the rent for the year 1323. But before deciding that point we have to decide the cross appeal of the defendants on the question whether the claim for 1323 is entirely barred. That objection is raised on the ground that although the claim was within time when the suit was originally filed on the 20th March, 1920, it became barred on the 4th March, 1921, when the application for amendment was made. In the body of the plaint it was stated that Lot Sajnorh was settled in putni with the shebaits of the Deity Lakshmi Janardan Thakur, but in the cause title their names were not mentioned. It is stated on behalf of the defendants that the original putnidars whose names appear in the zemindar's sherists are all dead; but it is found that the Debutter property is under the management of a committee consisting of four persons, and it was they who brought the suits for rent against tenants of the putni. They have been sued as defendants. They are shebaits, and it is also found that other persons who are alleged by the defendants to have interest as shebaits never got their names registered under the provisions of the Bengal Tenancy Act. In these circumstances we think that the application for amendment was merely for an amendment of the description and not for adding new parties to the suit. The claim for rent for the year 1323 is therefore not barred by limitation.
17. The question now is whether interest should be allowed. The Court below disallowed interest on the authority of a decision of this Court in the case of Dhunput Singh v. Saraswati Misrain (1891) 19 Cal. 267. That case, however, is distinguishable from the present case. In that case it was the zemindar himself who had purchased the property and was in possession. It was found that he himself had collected some of the rent, and in the circumstances he was not allowed any interest. In the present case a third party purchased the property and the defendants amicably settled the question of mesne profits with that purchaser. The defendants have actually realised rents from the tenants for the year 1323 by means of rent suits, as appears from the rent decrees produced in the case.
18. It is pointed out by the learned vakil for the defendants that these rent decrees were filed at a very late stage of the suitand they ought not to have been allowed to be put in at that stage. But they were decrees of Courts and it was not suggested that they were obtained by collusion or fraud. We think the plaintiff is entitled to get interest on the rent for the year 1323.
19. The last point is whether the suit ought to fail because it was not brought against all the heirs of the original tenants. But as already stated, the Debutter estate is in the hands of a committee of management. It is a putni taluk and it is found that none of the other heirs has got his name registered in the zemindar's sherista. In these circumstances we do not think that there is any substance in this contention.
20. The result is, that in appeal No. 227 of 1922 the plaintiff's claim for rent, cesses and interest for the year 1322 is dismissed. But the plaintiff will get interest on the rent and cesses for the year 1323 from the defendants. Appeal No. 291 of 1922 is dismissed entirely. Bach party will bear his or their own costs in both the appeals.