1. These five appeals arise out of suits filed simultaneously by co-sharer landlords against their common tenant, for what may be called rent, as a convenient term. Three of the suits were tried by a Munsif, and the appeals were heard by a Subordinate Judge. Two others were tried by the Subordinate Judge, and the appeals were heard by the District Judge.
2. There is only one point for decision and it is common to all the suits and appeals, but it was decided in favour of the defendant by the Subordinate Judge and in favour of the plaintiffs by the District Judge. The result is that the three appeals of 1913 have been filed by the plaintiffs against the decision of the learned Subordinate Judge and the two appeals of 1914 by the defendant against the decision of the learned District Judge.
3. The facts that have given rise to the appeals are as follows. The plaintiffs, as landlords, granted leases to the defendant, in 1293 B.S., and one of the conditions was that the lessee should not alienate his right in any way, and that if he did so the leases would be forfeited, and the plaintiffs would be entitled to khas possession of the lands demised. In spite of this stipulation the defendant granted an ijara settlement to one Harashit Ghose for a term of 999 years on Magh 9, 1311. The plaintiffs thereupon instituted suits for ejectment of the defendant on January 19th, 1906. Those suits were finally decided by a judgment of this Court passed on June 3rd, 1910, by which it was held that the plaintiffs were entitled tinder the provisions of Section 155, Bengal Tenancy Act, to claim from the defendant reasonable compensation for the breach of the conditions of the lease, and on the defendant's default, to a decree for ejectment. The cases were sent back to the lower Appellate Court with directions to determine what is reasonable compensation to be paid by the defendant to the plaintiffs in each case, and after fixing, under the provisions of Section 155 of the Bengal Tenancy Act, the period within which the compensation should be paid, to pass a decree in favour of the plaintiffs for recovery of such sums within the period fixed, and on default of the defendant to pay the sums within that period, for ejectment of the defendant from the tenure [see Keshab Lal v. Madhu Sudan Pal 6 Ind. Cas. 685 ; 12 C.L.J. 126].
4. The learned Subordinate Judge, in accordance with these directions, fixed the amount of compensation on August 7th, 1911, and on August 15th, 1911, the sums so fixed were deposited in Court by the defendant.
5. Meanwhile, on April 18th, 1911, the plaintiffs instituted the suits from which these appeals arise, claiming rent, or money compensation for use and occupation of the land, from the last kist of 1311 B.S., or the first kist of 1312 B.S. down to the end of 1317 B.S. The defendant asserts that the claims for periods prior to the first day of 1314 B.S. are barred by limitation, and that is the question which we have to decide. As already mentioned, the learned Subordinate Judge answered the question in one way, and the learned District Judge in the other way.
6. Numerous authorities were quoted before us: they are to be found collected in the notes to Section 155 in Mr. Rampini's annotated edition of the Bengal Tenancy Act. Of these cases the plaintiff relies on those of Musammat Rani Sumo Moyee v. Shooshee Mokhee Burmania 12 M.I.A. 244 ; 11 W.R. (P.C.) ; 5 ; 2 B.L.R. (P.C.) 10 ; 2 Suth. P.C.J. 173 ; 2 Sar. P.C.J. 424 ; 20 E.R 331 and of Deen Dyal Paramanick v. Radha Kishoree Debee 17 W.R. 415 ; 8 B.L.R. 536. The circumstances of the former, however, are very different from those of the case now under consideration. The second case, and another case to which reference is made in the judgement [Eshan Chunder Roy v. Khajah Assanoollah 16 W.R. 79 ; 8 B.L.R. 537n] are certainly in favour of the plaintiffs' contention, but they were considered in the cases of Watson & Co. v. Dhonendra Chunder Mookerjee 3 C. 6 ; 2 Ind. Jur. 209 ; 1 Ind. Dec. (N.S.) 596 and of Hurro Proshad Roy v. Gopaul Dass Dutt 3 C. 817 ; 2 C.L.R. 450 ; 1 Ind. Dec. (N.S.) 1104, and on appeal to the Privy Council against this last decision the true effect of Rani Surno Moyee's case 12 M.I.A. 244 ; 11 W.R. (P.C.) ; 5 ; 2 B.L.R. (P.C.) 10 ; 2 Suth. P.C.J. 173 ; 2 Sar. P.C.J. 424 ; 20 E.R 331 was explained [Huro Pershad Roy v. Gopal Das Dutt 9 C. 255 (P.C.) ; 12 C.L.R. 129 ; 9 I.A. 82 ; 6 Ind. Jur. 546 ; 4 Sar. P.C.J. 363 ; 4 Ind. Dec. (N.S.) 820]. It appears to me that on the authority of the Privy Council decision just mentioned it cannot be held that the case of Deen Dyal Paramanick v. Radha Kishoree Debee 17 W.R. 415 ; 8 B.L.R. 536 should be treated as substantiating plaintiffs' contention.
7. In support of their argument it was further urged that a suit for rent during the proceedings would have operated as waiver, and as authority for this proposition our attention was drawn to a case in which it was held that acceptance of rent from the mortgagee of an occupancy holding as such without protest even for one occasion amounts to a recognition of the rights of the mortgagee as such. A proposition for which the learned Vakil has to go so far in search of support needs no comment.
8. It appears to me that on the Privy Council decision reported as Huro Pershad Roy v. Gopal Das Dutt 9 C. 255 (P.C.) ; 12 C.L.R. 129 ; 9 I.A. 82 ; 6 Ind. Jur. 546 ; 4 Sar. P.C.J. 363 ; 4 Ind. Dec. (N.S.) 820 the plaintiffs might have brought their suit much earlier. At any rate they might have sued, as in fact they have now sued, for damages on account of use and occupation. A suit framed in that form could not have been interpreted as waiving the right to claim forfeiture.
9. It may be added that the contentions of the plaintiffs would have worn a better complexion if they had waited until the time fixed for making the deposit had expired or until the deposit had been made, instead of filing their suits on the 1st of Baisakh, and then not as rent suits, but as suits for compensation for use and occupation.
10. In my opinion the decision of the learned Subordinate Judge is correct. I think, therefore, that Appeals Nos. 1327, 1383, 1384 of 1913 should be dismissed, and Nos. 2681 and 3657 of 1914 should be decreed all with costs.
D. Chatterjee, J.
11. I agree.