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Burna Moyi Dassee Vs. Burma Moyi Chowdhurani and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal191
AppellantBurna Moyi Dassee
RespondentBurma Moyi Chowdhurani and anr.
Cases ReferredSwarnamayi v. Shashi Mukhi Barmani
Excerpt:
limitation - bengal tenancy act (viiiof 1885), section 184, and schedule iii, article 2 (b)--suit for arrears of rent--regulation viii of 1819. - .....rent in arrear, this action was commenced on the 14th of may 1894 to recover the balance of the putni rent to the end of 1297 (which was equivalent to the 12th of april 1891), after giving credit for the sum of rs. 100, for which the putni had been sold, and the question we have to consider is whether the period of limitation runs continuously from the 12th of april 1891, when the rent became due, or whether the time during which the proceedings before the collector were pending must be deducted.5. a good many cases were cited before us, and the following are those which it will be necessary to consider. in maharaja mahtab chunder v. heera lal s.d.a. 1858, p. 1688, the plaintiff instituted the suit to recover arrears of rant due from a putni taluk for the second six months of 1249. it.....
Judgment:

W. Comer Petheram, C.J. and Beverley, J.

1. This is an action to recover the sum of Rs. 5,010-8-10, the balance of the rent of a putni to the end of the Bengali year 1297.

2. The Subordinate Judge has dismissed the suit on the ground that it is barred by limitation, and the plaintiff has appealed.

3. On the first day of the Bengali year 1298 the plaintiff filed a petition in the Court of the Collector to sell the putni under the provisions of Regulation VIII of 1819, and on the 1st of Jeyt 1298, equivalent to the 14th of May 1891, purchased it herself for Rs. 100.

4. The sale proceeds not being sufficient to liquidate the rent in arrear, this action was commenced on the 14th of May 1894 to recover the balance of the putni rent to the end of 1297 (which was equivalent to the 12th of April 1891), after giving credit for the sum of Rs. 100, for which the putni had been sold, and the question we have to consider is whether the period of limitation runs continuously from the 12th of April 1891, when the rent became due, or whether the time during which the proceedings before the Collector were pending must be deducted.

5. A good many cases were cited before us, and the following are those which it will be necessary to consider. In Maharaja Mahtab Chunder v. Heera Lal S.D.A. 1858, p. 1688, the plaintiff instituted the suit to recover arrears of rant due from a putni taluk for the second six months of 1249. It appears that the putnidar who executed the kahuliyat was named Sham Lall, and that, at the close of 1249, the plaintiff took the usual proceedings to bring the taluk to sale under Regulation VIII of 1819. Accordingly the taluk was sold on the 4th Jeyt 1250, and the suit was brought to recover that portion of the arrear which the 'sale proceeds did not cover. The suit was instituted on the 20th Bysack 1262.

6. The Judges held that the personal liability of the putnidar was confined to so much of the rent as was not covered by the proceeds of the sale, and that the period of limitation did not begin to run until the result of the sale was ascertained.

7. In Maharaja Mahatab Chand v. Sona Bihee S.D.A. 1860, p. 273, the Judges intimated that they entirely concurred with the earlier decision. This last was an appeal from a decision of the 11th of August 1857, and at the time these cases were decided the only law of limitation in India was that contained in Regulation III of 1793, Section 14, which provided that no action should be tried if the cause of action had arisen twelve years before the suit should have been commenced, unless, inter alia, the plaintiff should prove that either from minority or some other good and sufficient cause he had been precluded from obtaining redress.

8. Swarnamayi v. Shashi Mukhi Baranani 2 B.L.R. P.C. 60 : 11 W.R. P.C. 5 : 12 Moo. I.A. 244 was decided under Section 32 of Act X of 1859. In that case, after the putni had been sold and the money paid over to the zamindar, the sale was set aside and the money refunded by the zemindar to the putnidar. The Privy Council held that under such circumstances a suit by the zemindar against the putnidar for the rent was not barred by the law of limitation, although it was commenced more than three years from the date mentioned in Section 32 of Act X of 1859. The facts of that case were wholly different from those of the present case, and it was decided on the construction of Section 32 of Act X of 1859.

9. In Huro Pershad Roy v. Gopal Dass Dutt I.L.R. 9 Cal. 255 the Judicial Committee of the Privy Council held that. 'after the expiration of the period prescribed by Section 29 of 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,' and they explained that the decision in the case of Swarnamayi v. Shashi Mukhi Barmani 2 B.L.R. P.C. 60 : 11 W.R. P.C. 5 : 12 Moo. I.A. 244 proceeded on the facts of that particular case. Several other cases were cited in the argument, but it is not necessary for us to notice them here.

10. The present case is governed by the provisions of the Bengal Tenancy Act, Section 184, and Article 2 (b) of Schedule III to that Act. By that article the period of limitation in a suit for rent is three years from the last day of the Bengali year in which the arrear fell due, and as in this case the arrear fell due in the Bengali year 1297, which ended on the 12th of April 1891, and the suit was not commenced until the 14th of May 1894, it is manifest that the suit was not commenced within three years of the last day of the Bengali year in which the arrear fell due, and that none of the authorities quoted affect the case, and that the decision of the Subordinate Judge is correct.

11. The appeal will be dismissed with costs.


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