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Girjanath Roy Chowdhry and anr. Vs. Ram NaraIn Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal264
AppellantGirjanath Roy Chowdhry and anr.
RespondentRam NaraIn Das
Excerpt:
public demands recovery act (bengal act vii of 1880), section 8 (b), clause 3, and section 10--certificate, suit to set aside--amount not 'due'--limitation act (xv of 1877), section 14. - .....1 and 2, and to manmotha nath together, there is nothing in the case to show that separate rent was legally claimable in respect of a share of the total rent appropriate to the interests of defendants 1 and 2. an express agreement to pay these shares of rents or payments of those shares of rents from which an agreement may be inferred might constitute a claim for demand of separate payment in proportion to the rent. but there is nothing of that sort in this case. we have been referred to certain evidence, which we must take it is the only evidence in the case which could be used, in support of the conclusion that separate rent was claimable legally in respect of the shares of defendants nos. 1 and 2. that evidence consists merely in the assertion by one witness that after.....
Judgment:

Pigot and Banerjee, JJ.

1. This is a suit to set aside a sale purporting to have been made under the Public Demands Recovery Act. The lower Courts have both decided in favour of the plaintiff, and this is an appeal against that decision.

2. Two points are enough in this case for us to deal with. The first is the question of limitation; and secondly, a question which does not seem to have been discussed before the District Judge, viz., the validity of the certificate. We should gather that the question of the validity of the certificate was not debated before the District Judge, inasmuch as he does not consider that question in his judgment at all, but simply deals with the question as to whether the suit was barred by limitation. It will be convenient, therefore, to deal with the question of limitation after dealing with the question of the certificate.

3. The certificate was granted in respect of arrears of rent said to have been due by a plaintiff, Ram Narain (leaving aside the names of persons erroneously entered as parties) in respect of the ganti, a share in which he is the owner of. The defendants 1 and 2 had been [together with Manmotha Nath, not a party to this suit] under the Court of Wards; and it has been found that before Manmotha Nath was released from the guardianship of the Court of Wards rent was payable jointly to defendants 1 and 2, and to him in respect of their zemindari share in the ganti rent. Manmotha Nath was released from the wardship, and a certificate or what purported to be a certificate was issued by the Collector in which there was a demand for the proportionate share of the defendants Nos. 1 and 2 in the qanti rent payable by the holders of it to the superior tenure. After Manmotha Nath was released it does not appear that any rent was collected from Ram Narain on behalf of defendants 1 and 2 in respect of the qanti. Now assuming as we do from the finding of the lower Court that there was a legal right to claim rent payable to defendants 1 and 2, and to Manmotha Nath together, there is nothing in the case to show that separate rent was legally claimable in respect of a share of the total rent appropriate to the interests of defendants 1 and 2. An express agreement to pay these shares of rents or payments of those shares of rents from which an agreement may be inferred might constitute a claim for demand of separate payment in proportion to the rent. But there is nothing of that sort in this case. We have been referred to certain evidence, which we must take it is the only evidence in the case which could be used, in support of the conclusion that separate rent was claimable legally in respect of the shares of defendants Nos. 1 and 2. That evidence consists merely in the assertion by one witness that after Manmotha Nath was released from the guardianship of the Collector he received rent appropriate to his individual share in this mehal. It is not stated from what tenants the rent was received; it is not said what amounts were received, nor is Ram Narain named as one of those who paid him his separate share. In fact that evidence is nothing to the purpose. We have it then that at the date of the issue of the certificate and prior to the date of the notice, which must have been given in Form 3 of the schedule to the Act, there was no right at law to claim from Ram Narain separate payment of the share of rent appropriate to the interests of defendants 1 and 2. A suit brought in their names for that amount alone must have been dismissed. There was, therefore, no sum due in respect of arrears of rent from Ram Narain to those two persons, by which of course is meant to those two persons separately. Strictly speaking, no sum was legally due to them from him at all. There was a liability to pay the total rent, or such portions of it, as had been made separately payable by an agreement express or implied: but only that. As to them, there was no such agreement, and therefore there was no amount claimable separately by them at law.

4. It is argued that the Collector's certificate, which must be founded upon the manager's verified notice (verified as a, plaint), is a sufficient answer to the observation that no arrears of rent were due by this defendant to these two particular persons separately. We think there is no foundation for such a proposition. The law does not allow the Collector to make by his certificate a sum legally claimable and recoverable which was not claimable and recoverable legally before he issued it This Act was passed to devise a speedy and convenient remedy for the recovery of money due, but it does not in any way empower a Collector first to make a sum duo and then to levy it under a certificate. A certificate for money in respect of a claim which has no foundation whatever at law ought not to issue. Section 8 provides: 'that no certificate duly made under the provisions of this Act shall be cancelled by a Civil Court otherwise than on one or more of the grounds' set out in that section. One of these, the 3rd, is that the amount stated in the certificate was not due by the judgment-debtor under the certificate. Here the amount was, as we have said, not due : and on this ground the certificate must be cancelled and the sale set aside.

5. Then as to limitation, the question is whether Section 14 of the Limitation Act applies. We think it does. The sections giving a party the right of appeal to the Collector and the Commissioner do not appear to give these officers the faculty of enquiring into a question such as has arisen here. The question was raised by Ram Narain in his fifth point before the Collector, who declined to entertain it. Probably he was right and could not adjudicate upon it. The question which he had to determine was whether, assuming the claim to be legally founded, the liability under it existed. That being so, the period during which plaintiff was bond fide seeking to have redress in Courts which had no jurisdiction to deal with the question now before us must be struck out, and if that period is struck out, the suit is not barred by any period of limitation.

6. For these reasons we hold that the appeal must the dismissed with costs.


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