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Prodyot Kumar Tagore Vs. Bal Gobinda Ditchit - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Reported inAIR1925Cal518a
AppellantProdyot Kumar Tagore
RespondentBal Gobinda Ditchit
Cases ReferredBarhamdeo Narayan Singh v. Mackenzie
Excerpt:
- .....parties were satisfied with the finding of the trial court on the question. the observation of the learned judge has bean challenged on two grounds. in the first place it is argued that it was necessary to consider this point on the findings of the judge on the other issues raised in the suit. on this point the case of barhamdeo narayan singh v. mackenzie (1884) 10 cal. 1095 has been relied upon. but in view of the observation of their lordships of the judicial committee in the case of mahomed sulaiman v. birendra chandra singh a.i.r. 1922 p.c. 405, we do not think that the additional district judge has done something which he was not justified in doing. as his judgment is subject to appeal to this court, it is desirable that he should enter his finding on all the points raised. but, as.....
Judgment:

1. This is an appeal by the plaintiff in a suit for a declaration that the status of defendant in respect of a certain tenure is not that of a permanent tenure-holder as recorded in the record-of-rights. It appears that within certain boundaries there are four tenures held by the defendant under the plaintiff. The first is known as Khode jote comprising 397 bighas: the second as Fasal jote comprising 747 bighas; the third tenure is a small Chukani jote bearing a rental of Re. 1-5-6; and the fourth is another small Fasal jote bearing a rental of Rs. 12-7-6. In the record-of-righta the first tenure is recorded as permanent, the other three tenures being recorded as non-permanent. The plaintiff has brought a suit for declaration that the first tenure, namely the Khode jote, is also non-permanent as the other tenures. Both the Courts below have held against the plaintiff on the ground of limitation as also on the merits.

2. In appeal the learned Advocate-General, who appears for the appellant, has thought it fit to argue the question of limitation first, and has intimated that there are other points in the case which call for our consideration if the question of limitation is decided in his favour. We have considered this question of limitation raised by the appellant and we think that the view taken by the Lower Courts is correct. The record-of-rights was finally published on the 10th January, 1913, and the certificate of final publication was signed on the 27th March, 1913. The present suit was brought on the 26th March, 1919. It is not disputed that under Article 120 of the Limitation Act the suit must be brought within 6 years; the only question that remains to be considered is whether the period of 6 years should be computed from the date of the publication of the record-of-rights or from the date when the certificate was signed. The learned Advocate-General has taken us through various sections of the Bengal Tenancy Act to show that in many instances when a certain act has to be done under the Act within a certain time, the period has been calculated from the date of the certificate. The relevant sections are Section 104-G, 104-H, 105, 106 and 108 A, No doubt, the Bengal Tenancy Act whenever fixes any period for the doing of a certain act, it has reckoned it from the date of the certificate of the final publication. But it does not necessarily follow from this, that in computing the period for the purpose of the Limitation Act the starting point should be the same. Section 120, Limitation Act. makes time run from the date when the right to sue accrues. It has therefore to be investigated when that right accrued. The suit is one for declaration under Section 42,. Sp. Rel. Act the cause of action being the cloud cast upon the plaintiff's title by virtue of the entry in the record-of-rights. The certificate signed by the Revenue Officer at some later date did not cast any further cloud upon the plaintiff's title. The cause of action, if any, arose from the date on which the record-of-rights was published and not on the date when the certificate was signed. It appears also that under Chapter X of the Bengal Tenancy Act the publication of the record-of-rights is the principal act which the Revenue Officer is authorized to do under the Bengal Tenancy Act and the signing is more a matter of form than substance. The view that in a suit brought under Section 111, B.T. Act, the cause of action arises on the publication of the record-of-rights is not a novel one. It has been adopted in several cases in this Court as well as in other Courts. See the cases of Rajani Nath Pramanik v. Manoram Mondal (1919) 23 C.W.N. 883, Aminudin v. Shaikh Saidar (1916) 1 P.L.J. 73, Brij Behary Singh v. Sheo Hankar Jha [1917) 2 P.L.J. 124, and the decision in S.A. 1933 of 1919 decided on the 22nd February, 1922. We are not persuaded to differ from these rulings and therefore it is not necessary to proceed with the matter any further.

3. There is another point raised by the appellant on the judgment of the lower Appellate Court which rests on a firmer ground. The learned Additional District Judge, after discussing the question of limitation and the merits of the case- the decision on both those points being against the plaintiff-has made a certain observation at the end of his judgment. It is to the following effect: 'It seems to me that all 'the lands in possession of the defendants constitute only one tenancy under the plaintiff. Granting of separate receipts from 1316 B.E. cannot destroy the oneness of the Tenure.' The same question was raised before the learned Subordinate Judge in the trial Court and he came to the conclusion that the tenancies were separate. There was no cross-appeal by the defendants against this finding of the Subordinate Judge nor was any cross-objection filed. We may, therefore, assume that the parties were satisfied with the finding of the trial Court on the question. The observation of the learned Judge has bean challenged on two grounds. In the first place it is argued that it was necessary to consider this point on the findings of the Judge on the other issues raised in the suit. On this point the case of Barhamdeo Narayan Singh v. Mackenzie (1884) 10 Cal. 1095 has been relied upon. But in view of the observation of their Lordships of the Judicial Committee in the case of Mahomed Sulaiman V. Birendra Chandra Singh A.I.R. 1922 P.C. 405, we do not think that the Additional District Judge has done something which he was not justified in doing. As his judgment is subject to appeal to this Court, it is desirable that he should enter his finding on all the points raised. But, as we have observed, this point was not raised before him either by the appellant or by the respondent and the learned Judge has entered his finding, if it can be so called, without giving full consideration to the evidence on this point. The learned Subordinate. Judge has referred to many items of evidence in order to determine whether all these 4 tenancies were joint or separate. But there are further difficulties in the present case if the above observation made by the learned Judge is allowed to stand. Firstly, this observation is inconsistent with his finding that the entry in the record of rights in respect of the Khoda jote is correct. In the second place, the effect of the decree passed by the Judge is that the first tenure namely, the Khoda jote, is found to be permanent whereas the other three jotes, as recorded in the record of rights, are non-permanent. It seems anomalous that portion of a tenure should be permanent and the other portion non-permanent. We think that under these circumstances the learned Judge, finding that the plaintiff had failed to institute his suit within the statutory period, should not have proceeded to determine the question whether the tenures were one or separate. It is argued by the respondent that he was entitled to support the decree passed by the first Court, under Order 41, Rule 22, Civil Procedure Code, on a point found against him by that Court. This proposition of law cannot be questioned; but a finding on the question whether the tenancy was one or separate was not likely to affect the decree passed by the trial Court. The suit is not a suit for rant. It is one for a declaration that one of the jotes is not permanent. The finding that this jote formed part of a bigger jote would not affect the point at issue, the suit being limited to the declaration sought in respect of a particular jote and for the correction of the record of rights in that respect. It is, therefore, not a ground which is covered by Order 41, Rule 22. In this view of the matter we are of opinion that the remark above quoted from the judgment of the lower Appellate Court should be expunged and the decree passed by that Court in other respects be confirmed.

4. The result is that this appeal is dismissed with costs.


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