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Huro Pershad Roy Vs. Gopal Das Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal255
AppellantHuro Pershad Roy
RespondentGopal Das Dutt and ors.
Cases ReferredRanee Surnomoyee v. Shoshee Moohee Burmonea
Excerpt:
limitation - bengal act viii of 1869, section 29--suit for arrears of rent. - .....met by a plea to that effect.' in other words, the effect of the judgment of this board is, that under the peculiar circumstances, the patnidar having recovered possession, together with mesne profits, it was equitable that he should pay the amount of rent which was in arrear; but that amount of rent did not accrue until the sale of the patni had been set aside, and, therefore, until that time the statute could not run. this examination of that case shows it altogether to differ from the present. here there was no period of time in which the rent could not have been recovered. there was no period of time in which, therefore, the statute might not have run.5. this case, therefore, being inapplicable, and no other case being relied upon, their lordships have only humbly to advise her.....
Judgment:

R.P. Collier, J.

1. In this case, the sole question is as to the application of the Law of Limitation. The claim is for rent from April 1866 to June 1872. The terms of the 29th Section of Act VIII of 1869 of the Bengal Council are these: 'Suits for the recovery of arrears of rent shall be instituted within three years from the last day of the Bengal year, or from the last day of the month of Jeyt of the Fashi or Willayatti year in which the arrear claimed shall have become due.' It is admitted that in this case the suit was not instituted within three years from the end of the year when the last rent became due, and, therefore, prima facie, it is barred by the Law of Limitation. This prima facie case is endeavoured to be answered in this way: The plaintiff says that in 1874, that is to say, two years after the last instalment of the rent sued for had accrued due, the Statute ceased to operate because he instituted a litigation which had the effect of preventing it from running, and that, therefore, a portion at least of his claim is not barred. That litigation was this: He brought three suits in the year 1874 against the tenants with respect to whose arrears of rent the present action is brought, for the purpose of ejecting them from their holdings, which were called chakdari holdings, in a certain zamindari of which he was possessed. These suits were dismissed by the first Court, and on the 25th July 1876, by the Appeal Court, on the ground of limitation.

2. On the 7th September 1876 the appellant commenced the present suit, concurrently with which he prosecuted an appeal to Her Majesty in Council from the decree of the 25th July 1876. His appeal was dismissed on the 26th May 1881.

3. The appellant contends that the Statute did not run against his claim for rent after the year 1874, when he commenced these suits; and for that proposition he relies solely on the authority of the case of Ranee Surnomoyee v. Shoshee Moohee Burmonea 12 Moore's I.A. 244; S.C. 2 B.L.R. P.C. 10. Both Courts in India have decided against the appellant upon the ground that the Statute applies, and that his case does not come within the exception to the operation of the Statute established in the case of Ranee Surnomoyee--an exception rather apparent than real.

4. The effect of that case may be very shortly stated. The zamindar brought a certain patni taluk to sale, and sold it to a purchaser who was put in possession of it, and out of the purchase-money the arrears of rent were paid. Subsequently this sale was set aside for irregularity; the zamindar had to refund the purchase-money received by her, and the patnidar, who succeeded in setting it aside, obtained also the mesne profits for the time during which he was ousted. Under those circumstances this Committee, whose judgment was delivered by Sir James Colvile, observe: 'It is clear that until the sale had been finally set aside, she'--that is, the plaintiff--'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.' In other words, the effect of the judgment of this Board is, that under the peculiar circumstances, the patnidar having recovered possession, together with mesne profits, it was equitable that he should pay the amount of rent which was in arrear; but that amount of rent did not accrue until the sale of the patni had been set aside, and, therefore, until that time the Statute could not run. This examination of that case shows it altogether to differ from the present. Here there was no period of time in which the rent could not have been recovered. There was no period of time in which, therefore, the Statute might not have run.

5. This case, therefore, being inapplicable, and no other case being relied upon, their Lordships have only humbly to advise Her Majesty that the judgment appealed against be affirmed, and that this appeal be dismissed.


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