N. Chatterjea, J.
1. The plaintiffs-respondents hold certain permanent taluqs under the defendants-appellants who are the zemindars. The plaintiffs alleged that they hold the taluks on payment of certain money rents to the defendants; but that the latter took proceedings under Regulation VIII of 1819 in two successive years for realisation of the value of certain paddy rents which they said were payable of the taluks, and the plaintiffs in order to save their tenures from sale deposited the amount which the defendants claimed as the rents payable. The plaintiffs accordingly sued for a declaration that the taluks bear money rents as stated in the plaints, and not paddy rents, and for refund of the amount realised from them in excess of the proper rent under the proceedings under Regulation VIII of 1819.
2. Both the Courts below have decreed the suits, and the defendants have appealed to this Court, and the only question raised in these appeals is whether the suits are barred by limitation.
3. It is contended on behalf of the appellants that the suits are barred by the special limitation prescribed by Section 75 of the Bengal Tenancy Act and by Articles 14, 91, 92 and 93 of the general Limitation Act.
4. We are of opinion that Section 75 of the Bengal Tenancy Act has no application to these suits for two reasons: first, because the excess rent realised from the plaintiffs in the proceedings under the Patni Regulation cannot be said to have been exacted by the zemindars within the meaning of Section 75 of the Bengal Tenancy Act, which evidently contemplates exactions by means other than process of law, and secondly, because the section does not take away the right of a person, from whom rent has been realised in excess, to recover such excess amount from the landlord apart from the provisions of the section within the ordinary period of limitation. The section merely enables a tenant to recover from his landlord certain penalty in addition to the amount or value of what is exacted, if the suit is brought within six months from the date of the exaction, and we are of opinion that the limitation provided by the section does not bar a suit to recover the excess amount where no penalty is claimed.
5. We are also of opinion that Articles 91, 92 and 93 of the Limitation Act do not bar these suits. It appears that the defendants produced certain unregistered kabuliats before the Collector which showed that the paddy rents were payable for the tenures. The Courts below have held that these kabuliats were not genuine. It has been contended on behalf of the appellant that the plaintiffs cannot get the declaration that money rents are payable for the tenures without setting aside the kabuliats or getting them declared as forgeries. But even assuming that it is necessary for the plaintiffs to do so in order to succeed in these suits, there is nothing to show that the facts entitling the plaintiffs to have the kabuliats cancelled or set aside were known to them more than three years before the suits were instituted. On the contrary, the facts found in the case go to show that the plaintiffs became aware of the kabuliats for the first time when they were produced before the Collector in 1905, and the suits were instituted in February 1907. The suits, therefore, cannot be barred by Article 91, and for similar reasons, they cannot be barred by Articles 91 and 93 of the Limitation Act.
6. Then as to Article 14 of the Limitation Act--so far as the suits are for declaration that money rents as stated in the plaints and not paddy rents are payable for the tenures, we think the suits do not come under Article 14. Under Section 14 of the Patni Regulation, the Collector has power to make only a summary investigation if the talukdar contests the zemindar's demand of any arrear as specified in the notice advertised. The determination of what is the rent payable for a tenure is beyond the scope of the Collector's power. It may be that the Collector, in order to determine whether the zemindar's demand of the arrears is correct or not, has to consider the rent payable, but the investigation and his award have reference only to the particular demand and he has no power to decide what is the rent payable for the tenure in future. In these particular cases, the Collector did not come to any clear finding as to what was the rent payable, and merely directed the amount deposited to be paid over to the zemindar. But, even if it be held that he did so by implication, we are of opinion that his order merely amounts to a finding that the demand of arrears for the particular period was correct and cannot stand in the way of a suit for a declaration as to the proper rent payable for the tenures.
7. We accordingly hold that Article 14 of the Limitation Act does not apply to the suits in so far as a declaration is sought that the rents payable for the tenures were money rents as stated in the plaints.
8. The next question is whether Article 14 applies to the suits in so far as the plaintiffs seek a refund of the amounts realised by the zemindar under the Collector's order. The plaintiffs do not in express terms seek to set aside any act or order of an Officer of Government in his official capacity, but if it is necessary to set such an order aside before the plaintiffs can get a refund of the money, the mere fact that plaintiffs have not prayed for the setting aside of the order would not prevent the application of Article 14. We have, therefore, to see whether it is necessary for the plaintiffs to get the order of the Collector set aside in order to get a refund of the excess amount realised by the zemindar under the Collector's order.
9. Now, the award of the Collector under Section 14 of the Patni Regulation is passed only after a summary investigation into the zemindar's demand if the talukdar contests it, and merely regulates the ulterior process' as laid down in that Regulation. That section provides that if the summary investigation be not disposed of before the date fixed for the sale and the amount demanded by the zemindar is not deposited, the sale will not be estopped and the only remedy left to the talukdar is to bring a regular suit for reversal of the sale and for damages. Where, however, the award is made before the date of the sale, we think the zemindar takes the amount under the award of the Collector, subject to the liability to a civil suit. The Collector's award may be based upon a kabuliat which is contested by the talukdar (as in the present case) and when the patnidar succeeds in getting the kabuliat declared invalid in a suit, in the Civil Court, the basis of the Collector's order is gone. The Collector's order, in its nature, is merely provisional and made for a particular purpose, viz., for determining in a summary way the amount on payment of which the sale is to be prevented under the Regulation and is not a conclusive adjudication of the amount which may be justly due from the talukdar and the determination of which may depend upon matters which may be beyond the powers of the Collector to adjudicate, and which must, therefore, be adjudicated upon in a suit such as the present., There is no provision for setting aside such an award, and we are of opinion that the award of the Collector is no impediment to bringing a regular suit to contest the demand of the zemindar and there is no necessity for setting aside such an award.
10. The learned Pleader for the appellant; relied upon the case of Raghu Nath Prasad v. Kaniz Rasul 24 A. 467 : A.W.N. (1902) 116. In that case, a sale took place in execution of a decree, which had been transferred to the Collector under the provisions of Section 320 of the Civil Procedure Code, which was, however, set aside by the Collector on the application of the judgment-debtor and the Collector's order was confirmed on appeal by the Commissioner. The auction-purchaser brought a suit to have the sale in her favour confirmed more than a year after the Collector's order was passed, and it was held that inasmuch as the plaintiff's claim involved the setting aside of the Collector's order setting aside the sale, the suit was barred by Article 14. But the Collector's order setting aside the sale could be set aside by a suit, and so long as that order was not set aside, a suit could not be maintained for having the sale confirmed. That case is, therefore, distinguishable from the present.
11. The other case relied on, Parbati Nath Dutt v. Raj Mohan Dutt (2) is also distinguishable. In that case, a party to a proceeding before the Collector under the Estates Partition Act (VIII of 1876) contended that certain land measured as part of the estate under partition was not part of that estate but appertained to his howla. The Revenue Authorities, however, decided the question, against him under Section 116 of the Act, and it was held that a suit brought by him after one year from the date of the order for a declaration that the disputed land was part of his howla, was barred by Article 14 of the Limitation Act But, as pointed out in that case, the order under Section 116 which was binding on the plaintiff could not be set aside except as provided by Section 150, and Section 150 provided that any person aggrieved by an order under Section 116 may bring a suit to modify it or set it aside and Article 14 of the Limitation Act prescribes a period of one year for the bringing of such a suit. That case, therefore, is also distinguishable but it may be noted that in a later case Shyama Sundari Dasya v. Mahomed Zarip 9 C.L.J. 91 : 3 Ind. Cas. 693 the learned Judges declined to express any opinion upon the question whether the case of Parbati Nath Dutt v. Raj Mohan Dutt 29 C. 367 : 6 C.W.N. 92 is or is not open to criticism even with reference to the provisions of Estates Partition Act.
12. On the whole, we are of opinion that the claim for refund of the excess amounts realised by the defendants in the proceedings under the Patni Regulation is not barred by Article 14 of the Limitation Act, and that the suits are not barred by limitation on any of the grounds urged on behalf of the appellant.
13. The appeal is accordingly dismissed with costs.
14. I concur generally with my learned brother.
15. The only real difficulty is whether Article 14 of the Schedule to the Limitation Act is applicable to any of the reliefs claimed in the suit. As to that Article, I agree in the first place that the Collector's order in its scope was confined to the particular demand with which the order dealt and that the present suit, as a suit for the determination of the true conditions of the contract between the patnidar, plaintiffs and the zemindar defendants, is certainly not subject to the limitation prescribed by the Article and is within time.
16. On the other point which arises in this connection, I also agree though not without hesitation. The sum deposited by a talukdar under Section 14 of the Patni Regulation is deposited merely for the purpose of preventing the threatened sale and regard being had to the language of the section, I am disposed to concur in the view that whether the amount is in whole or in part ultimately paid over to the zemindar or returned to the talukdar, the Collector's order in relation to the question which party has a better right to the money is not within the purview of Article 14. The order determines that no sale shall take place. For that purpose, it is final and conclusive subject to such further proceedings as it may be open to either party to take in the Civil Courts. That being the nature of the order and the function which it serves, it seems unnecessary to have it set aside as a preliminary to the recovery of the money by means of a civil suit brought by the party other than the party to whom it is returned or paid over. In other words, the order raises no barrier which must be removed before such a suit can be instituted.