W. Comer Petheram, C.J. and Gordon, J.
1. The contention before us is that the learned Judge's view of the question of limitation is wrong. Now it is clear that prima facie the claim for rent for 1285 to 1290 is barred. The suit is for arrears of rent, and is therefore governed by the provisions of the Bengal Tenancy Act (Act VIII of 1885), and the period of limitation prescribed for suits for arrears of rent is given in Schedule iii annexed to that Act (see Section 184). The article applicable to the present case is Article 2 (b) of Fart I of this schedule, in which three years is the period of limitation for a suit for the recovery of arrears of rent, and that period begins to run from 'the last day of the Bengali year in which the arrears fell due, where that year prevails, and the last day of the month of Jeyt of the Amli or Fasli year in which the arrears fell due, where either of those years prevails.'
2. Unless, therefore, there are some special circumstances in this suit which exempt it from the operation of these provisions of the law, we think the appellant's contention must prevail. Now the learned Pleader for the respondents relies on the Privy Council ruling in the case of Rani Swarnamoyi v. Shashi Mukhi Barmani 2 B.L.R. P.C. 10 as being in point, and he argues that during the litigation, which commenced in 1879 and terminated in 1887, by the declaratory decree of the Subordinate Judge, his client was unable to sue the defendants for rent in respect of the excess land; in short he substantially contends that the plaintiff's right to sue the defendants accrued on the 21st March 1387 and not on the 28th March 1878 from which date the rent was declared to be payable. We think, however, that the Privy Council ruling is not applicable to the present case. In that case there were peculiar and exceptional circumstances which do not exist here. A putni taluk was brought to sale by the zemindar for arrears of rent, the purchaser obtained possession of the putni and the arrears of rent were paid to the zemindar out of the purchase money. The sale was afterwards set aside for irregularity at the instance of the putnidar, the purchase money was refunded, and the putnidar recovered possession with mesne profits for the time he was ousted, The zemindar then brought a suit to recover the original arrears, and it was held by the Privy Council, reversing the judgment of this Court, that upon the setting aside of the sale and the restoration of the putnidar to possession he took the estate subject to the obligation to pay the rent, and the arrears claimed must be taken to have become due in the year in which that restoration took place; and further that until the sale had been finally set aside the zemindar was in the position of a person whose claim had been satisfied, and his claim might have been successfully met by a plea to that effect. But the facts of the present case are quite different. As far as we can see there is nothing in the terms of the kabuliat or in the law of landlord and tenant then in force, which prevented the plaintiff from suing for the excess rent after the service of the notice on the defendants in March 1878. Instead, however, of adopting this course the plaintiff chose to bring a suit in an alternative form asking either for khas possession of the excess land, or for a declaratory decree assessing the rent thereon in the terms of the kabuliat. He ultimately failed in his prayer for direct possession, but succeeded in getting a declaratory decree, and he now seeks to use this decree as if it gave him a cause of action in respect of the arrears he claims. We think that this is not so; and that the plaintiff's right to sue accrued when the rent for the excess land fell due after the service of notice on the 21st March 1878, from and after which date the Privy Council declared this rent to be payable, and therefore time began to run in respect of each year's rent on the last day of the Bengali year (the last day of Choitro) in which that rent fell due, and that being so, the claim for rent for the years 1285 to 1290 is barred by limitation. In the view we take we think we are supported by the authority of several cases which the learned pleader for the appellants has placed before us, viz., the cases of Doyamoyee Chowdrainee v. Bholanath Ghose 6 W.R. (Act X Rul.), 77, Huro Pershad Boy v. Gopal Das Dutt I.L.R. 9 Cal. 255 and Sheriff v. Dina Nath Mookerjee I.L.R. 12 Cal. 258.
3. The result is that this appeal, as regards the rent of the years 1285 to 1290 inclusive, must be decreed, and the plaintiff's claim for the rent of those years be dismissed with costs of both Courts.