1. The suit out of which this appeal has arisen, described by' the trial Court as ' a suit to enforce certain statutory mortgages ' was instituted on 21st April 1926, by three idols, Sree Sree Iswar Lakshmi Narain Jiu Thakur, Sree Sree Iswar Sarodia Durga Debi Thaku-rani and Sree Sree Iswar Jagadhatri Debi Thakurani, represented by their shebait, Rajani Nath Banerjee. As stated in the plaint the claim in suit was for recovery of money on declaration that the property mentioned in Schedule (ka) of the plaint was liable for the amounts paid or deposited under Section 270, Ben. Ten. Act, and under Section 13, Bengal Patni Regulation (Regn. 8 of 1819), for the protection of the darpatni interest of the idols, the plaintiffs in the suit. The payments were made by the shebait for the time being, on various dates, and they were necessitated by the zamindar's refusal to receive the patni rent from the she-bait. The first payment was made on 4th August 1914, in Execution Case No. 83 of 1914, arising out of Rent Suit No. 104 of 1913; the second payment was made on 20th March 1915 in Execution Case No. 31 of 1915, in which the decree in Rent Suit No. 1142 of 1914 was sought to be executed; the third payment was made on 8th September 1915 in Execution Case No. 415 of 1915, arising out of Rent Suit No. 34 of 1915; the fourth payment was made on 19th February 1916, in Execution Case No. 858 of 1915, arising out of Kent Suit No. 1409 of 1915; the fifth related to the decree in Rent Suit. No. 1322 of 1915, sought to be executed in Execution Case No. 887 of 1915. The next payment in order of time was the one made by the shebait on 14th May 1916, in proceedings initiated by the zamindars under the Patni Regulation. The seventh and the last of these payments by the shebait to which the present suit relates was the one made by the shebait on 9th May 1917, in execution Case No. 165 of 1917 arising out of Rent Suit No. 1404 of 1916. The zamindars, defendants 18 to 22, in the suit out of which the present appeal has arisen, or their predecessors-in-title had obtained decrees for rent against the patnidars under them, in the six suits for rent referred to above, and had taken steps as provided by Regn. 8 of 1819 for realization of the patni rent in one of the seven instances mentioned above. The zamindars' demands, it would appear, were satisfied by the deposits or payments made by the shebait. The she-bait obtained possession of the Patni Mahal on 12th November 1915, under Section 171, Ben. Ten. Act, and according to statements made in the plaint, remained in possession till 26th February 1926, when possession of the Mahal, it is said, was given up by the shebait.
2. For a clear appreciation of the position of the parties in regard to the claim in suit a reference to some other facts is necessary. The zamindari interest, known as estate Kanior (represented in the suit by defendants 18 to 22), touzi No. 612 of the Birbhum Collectorate was settled in patni. The contesting defendants in the suit, defendants 1 to 8, the appellants in this Court, own a 12 annas 6 gandas, 2 koras and 2 kran-tis share of the patni. The patni tenure, created in 1855, was in course of time, let out in darpatni. One darpatni was created in 1183, in respect of the 7 annas share of the patni, and by the terms of the Darputni kabuliyat, dated 2nd February 1883, the obligation to pay the patni rent due to the zemindar in respect of the 7 annas share, was placed on the darpatnidar. There were two other darpatnis created in the year 1884, in respect of each of the remaining.. 2 annas 13 gandas, 1 kora and 1 kranti shares. Under these three darpatnis there was one sapatni taluk created in favour of Hari Narayan Banerjee the father of Bajani Nath Banerjee the she-bait who represents the idols in the present suit. The dedication of property to the idols was by this Hari Narayan Banerjee, and the entire sapatni taluk was dedicated on 20th June 1905, to the two. idols Durga and Jagadhatri, along with, 1 anna share of the patni which was owned by Hari Narain Banerjee. The three darpatnis were dedicated after their purchase by Hari Narayan, to the three idols Lakshmi Narayan, Durga and Jagadhatri on 16th June, 1915. It was. by virtue of the interests thus created in favour of the idols that it became necessary for the shebait for the time being to make the payments or deposits in the various proceedings to which reference has been already made in detail. It is necessary to mention in this connexion that the plaintiffs have proved that so-far as the rent suits and the proceedings under Regn. 8 of 1819 for the realization of patni rent were concerned, they originated from, and that they were the outcome of the zamindar'a refusal to receive patni rent from the shebait. The plaintiffs' evidence in support of this part of the case has not been challenged by the contesting defendants in the suit. It has also to be noticed that so far as the suits for rent, the decrees obtained in these suits, and the proceedings in execution of the decrees, were concerned, no objections was at any previous stage taken either by the contesting defendants or by any party whatsoever. It was never asserted much less made out, that the suits for rent were not properly constituted owing to the absence of necessary parties, nor was it stated at any time previous to this, that the decrees were not decrees for rent as contemplated by law, and that the proceedings in. execution of these decrees were not, and could not be under Ch. 14, Ben. Ten. Act.
3. It appears that the shebait of the idols obtained possession under Section 171, Ben. Ten. Act, on 12th November 1915, possession having been delivered on that date by an order of the Court passed in Execution Case No. 31 of 1915,. arising, out of Rent Suit No. 1142 of 1914. The learned Subordinate Judge, in the trial Court overruled all the contentions raised by the contesting defendants 1 to 8 in the suit. The question of maintainability of the suit in the present form in its various aspects, the question of limitation, the plea of res judicata, the point raised as to the election of remedies by the plaintiffs, as also the question of the factum and the nature of the payments or deposits of which mention had been made in the plaint, were decided against the defendants, and in favour of the plaintiffs; and the trial Court upon the decision arrived at by it, passed a decree in the suit in this form:
The suit be decreed preliminarily. Let a commissioner be appointed to take the accounts during the possession of the plaintiff up to this date, (i. e., 25th January 1928). He shall examine the accounts as supplied by the plaintiff, in presence of the defendants and report to this Court the result of his investigation from after to-day, (i.e., 25th January 1928). Plaintiff shall deposit in this Court to the credit of the suit the yearly profits of the patni until further orders. Proper order in respect of the amount thus deposited will be passed later on. Question of costs will be decided later on.
4. As against the decision and decree passed by the trial Court defendants 1 to 8 have appealed and in the appeal before us the question on which great stress has been laid is the one relating to a part of the claim in suit, to which according to the contention of the appellant, the bar of limitation was applicable. It was argued before us that the claim with regard to payments or deposits made by the shebait for the time being, prior to the period of six years of the date of institution of the present suit, was barred by time. Regard being however had to the facts and circumstances of the case before us, the shebait for the time being having obtained possession of the patni mahal on 12th November 1915, under the provisions of Section 171, Ben. Ten. Act, and the present claim being on the basis of accounts filed with the plaint, showing payments that were made from 14th August 1914, for the purpose of saving the property from sale, and all profits derived and realizations made from the property from the date on which the shebait took possession of the same, as girbidar, no question of limitation as sought to be argued by the learned advocate for the appellants, arises in regard to the claim as made in the suit as a whole, or in respect of any of the items of payment, made by or on behalf of the plaintiffs. Even on the assumption that any question of limitation arises for consideration, the plaintiff's claim in regard to payments made by the shebait of the idols, beyond six years of the date of the institution of the suit, cannot be held to have been barred by time. The provision of the Limitation Act, applicable to the facts of the present case, would clearly be that contained in Article 132, Schedule 1 of the Act. In view of the provisions contained in Sections 170 and 171, Ben. Ten. Act, the claim as made in the suit could well be held to be a claim to enforce payment of money charged upon immovable property. None of the other articles referred to in this connexion in the course of the argument; Articles 61, 99 and 120, could therefore have any possible application to the plaintiff's claim in suit.
5. Coming next to the appellant's contention that the Shebait of the idols was bound to pay all arrears of rent and other demands payable to the zamindar, which accrued due during the period of his possession of the patni mahal, and that no suit was maintainable for. realization in respect of payments so made, the plaintiffs having elected their remedy by going into possession of the mahal. The answer to that would be that the law does not contemplate the position as indicated above, on behalf of the appellants. The shebait was not bound to go on making payments as girbidar, if the usufruct of the property did not permit such payments being made; nor could it be said that the plaintiffs had no right to recover money by a suit of the present nature on account of payments actually made, in order to save the Patni Mahal from being sold, if in point of fact the realizations from the property were not sufficient for the purpose of reimbursement. The position that the girbidar had been in possession of the entire Patni Mahal (the 16 annas share of the same) has not been controverted, nor has the plaintiff asked for any relief in this present suit, without first having rendered account in respect of all realizations made by them, during the period of their possession. The plaintiff's accounts have been filed with the plaint, and the trial Court has, so far, made a decree for accounts only. Furthermore, the suit as laid was maintainable in this view of the matter that the provisions contained in Section 171 (2), Ben. Ten. Act, expressly permit a relief of the nature claimed by the plaintiffs in the present suit. The shebait for the time being, representing the idols was entitled to possession of the Patni Mahal as mortgagee and to retain possession of the same, until the debt due to him had been discharged; the plaintiffs, the idols, had the further remedy under the law open to them to ask for reliefs as they have done in the present suit, after giving up possession of the Patni Mahal.
6. In the above view of the case the question of maintainability of the suit as laid, the question of election of remedies and the further question that the plaintiffs in the position of usufructuary mortgagees cannot bring a suit of the present description, must be answered against the appellants before us. The plaintiffs were not usufructuary mortgagees pure and simple; they were persons who went into possession of the patni mahal under a special provision of law as contained in Section 171, Ben. Ten. Act, and there is no bar either in law or in equity, to the plaintiff's claim in suit being allowed, if on examination of the accounts as directed by the Court below, the plaintiffs are able to establish their claim to the amount for the recovery of which the suit has been instituted.
7. The question of res judicata was raised by the contesting defendants in regard to two of the payments made by the shebait of the idols, the first payment in respect of which the bar of res judicata was pleaded was the one made for the purpose of preventing the patni sale under Regn. 8 of 1819, and the second was the payment made to prevent the sale of the Patni Mahal in execution of a decree in Rent Suit No. 1404 of 1916, the sixth and the seventh items of payment, as mentioned in a previous part of this judgment. With reference to these two payments there were suits for contribution by the shebait for the time being, and on reference to the judgments in the previous suits on which the plea of res judicata is founded, it is apparent that in these suits the decisions went against the plaintiffs in the present suit, expressly for the reason that 'when accounts will be closed, there will be time enough to realize the amounts,' and that
as long as the plaintiff continues as mortgagee in possession he cannot sue for contribution. He is bound to render accounts and must prove that the money deposited by him has not been satisfied by the usufruct of the property he is enjoying.
8. The Court below was therefore justified in stating that virtually the plaintiffs in the present suit were directed in the previous suits to bring a suit of the present nature. There is therefore no substance in the appellant's contention in this behalf. It may also be noticed in this connexion that in view of the materials on record, it was not possible to maintain the position that the rule of res judicata was strictly applicable to the claim as made in the present suit: the previous suits for contribution to which reference has been made above, were instituted in the Munsif's Court with regard to a portion only of the claim now made in this suit before the Subordinate Judge. The learned advocate for the appellants had therefore to contend before us that the principle underlying the rule was applicable, if not the rule itself. On the materials before us, the contention cannot be accepted.
9. On the question of maintainability of this suit, so far as it rests on the plea of misjoinder of parties and causes of action, on which some argument has been advanced on behalf of the appellants before us, it is sufficient to say that it is impossible to give effect to the appellant's contention in this behalf. There was no such misjoinder of parties or causes of action in the suit as could possibly affect the merits of the case before the Court.
10. As indicated above, on the materials placed on the record, the points raised in support of this appeal must be decided against the appellants. The decision of the trial Court appears to be correct, and the decree as made by that Court, directing accounts to be taken, is also right. The decision and decree appealed from must therefore be affirmed, and the appeal dismissed with costs. It will be open to the trial Court, on the application of the parties, to give further directions for the production and examination of accounts, as may be considered necessary for the purpose of the final decision of the case.
10. I agree.