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Gopeshwar Pal Vs. Jiban Chandra Chandra and ors. and Srikanta Lohar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in24Ind.Cas.37
AppellantGopeshwar Pal
RespondentJiban Chandra Chandra and ors. and Srikanta Lohar and ors.
Cases ReferredMunjuri Bibi v. Akkel Mahmud
Excerpt:
bengal tenancy act (viii of 1885), schedule iii, article 3 - amendment--limitation--cause of action arising before amendment--suit instituted after amendment under--raiyat, suit for possession--dispossession by landlord--vested right of suit. - .....and is if the case remains unaffected by subsequent decisions bindings on us here.13. the privy council, however, in the case of lala soni ram v. kanhaiya lal 19 ind. cas. 291 : 40 i. a. 74 : 13 m.l.t. 437 : 17 c.w.n. 605 : 11 a.l.j. 389 : (1913) m.w.n. 470 : 17 c.l.j. 488 : 15 bom. l.e. 489 : 25 m.l.j. 131, 35 a. 227 : 40 i. a. 74. expressed the opinion that the statute of limitation in force at the time of the institution of the suit and not that in force when the cause of action arose applied to the case before them.14. following on that decision mukerjee and beachcroft, jj., held in the case of budhu kumar v. hafiz hussain 20 ind. cas. 821 : 18 c.l.j. 274., notwithstanding the view expressed by the privy council in the case of lala soni ram v. kanhaiya lal 19 ind. cas. 291 :.....
Judgment:

Fletcher, J.

1. This is an appeal against a judgment and decree passed by the District Judge of Bankurah, dated the 12th of April 1911, reversing the decree passed by the Court of the Munsif of the first Court at Bishanpur. The suit was brought for declaration of title to and possession of a certain piece of land of an area about 10 bighas.

2. The land in dispute was originally Ghatwali land held by one Kali Lohar, the Ghatwal. In the year 1866 the Ghatwal granted to the plaintiff's great-grandfather a temporary lease of the land in dispute of cultivating purposes.

3. In the year 1874 a renewed lease was granted to the plaintiff's grandfather by a registered document. On the 1st-of April 1879 documents were executed purporting to convert the holding into mokarari.

4. In the year 1902 the Ghatwali land was resumed by the Maharaja of Burdwan and the Maharaj settled the land with the former Ghatwal Kali Lohar in May 1902.

5. On the 28th June 1903, Kali Lohar sold the lands to the contesting defendants who almost immediately dispossessed the plaintiff of the same. The present suit was instituted in the month of July 1909.

6. The Court of first instance decreed the plaintiff's suit but on appeal the learned District Judge reversed the decree passed by the Munsif.

7. On the appeal before us it was first argued that when Kali Lohar obtained the lands in 1902 in settlement from the Maharaja of Burdwan, the estate then conferred on him went to feed the estoppel created on the purported grant of the mokarari interest to the plaintiff's ancestor on the 1st of April 1879, or at any rate by the acceptance of rent by Kali Lohar between May 1902 and June 1903 he had confirmed the lease to the 'plaintiff. As to the question of estoppel I agree with the lower Appellate Court and on the facts found I think that the acceptance of rent would amount to a confirmation of the tenancy of the plaintiff. But before the latter points can avail the appellant, it must be shown that his suit is not barred by limitation.

8. Now Schedule III, Part I, Article 3, to the Bengal Tenancy Act 1885,- provides that the period of limitation to recover possession of land claimed by a plaintiff as an occupancy-raiyat is two years from the date of dispossession. It has been decided in this Court that the article only applied to suits by occupancy-raiyats [See Ramdhan Bhadra v. Ram Kumar Dev 17 C 926.]

9. But by Section 61(3), Act I (B.C.) of 1907 the words ' A raiyat or an under-raiyat' were substituted in Article 3 in the place of the words 'an occupancy-raiyat.'

10. Act I (B.C.) of 1907 came into force on the 11th of May 1907 and as I have already stated this suit was instituted in the month of July 1909.

11. The argument put forward by the learned Vakil for the appellant is that the Statute of Limitation that was in force when the cause of action arose, and not that when the suit was instituted, applies to this case. Therefore as the cause of action arose before the passing of Act I (B.C.) of 1907 the present suit was brought in time.

12. In support of this argument reliance was placed on the decision in the case of Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889.That case was a decision of Mukerjee and F. R. Chatterjee, JJ., (Carnduff, J., dissenting) and is if the case remains unaffected by subsequent decisions bindings on us here.

13. The Privy Council, however, in the case of Lala Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 : 40 I. A. 74. expressed the opinion that the Statute of Limitation in force at the time of the institution of the suit and not that in force when the cause of action arose applied to the case before them.

14. Following on that decision Mukerjee and Beachcroft, JJ., held in the case of Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274., notwithstanding the view expressed by the Privy Council in the case of Lala Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74., that the decision of the majority of the Judges in the case of Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. remained unaffected. On the other hand Coxe and Ray, JJ., in Barhanuddi Chowdhury v. Lal Khan 21 Ind. Cas. 43., which was cited to us during the argument, declined to follow the decision in Munjuri Bibi v. Akkel Mahumed 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889., having regard to the decision of the Privy Council in Lala Soni Rani v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74.. In this conflict of judicial authority, I prefer to follow the decision of Coxe and Ray, JJ., to that of Mukerjee and Beachcroft, JJ.

15. In my opinion both on principle and authority the amendment of Article 3 of Schedule III Part I of the Bengal Tenancy Act being an enactment relating solely to procedure, applies to suits instituted after the amendment came into operation notwithstanding that the cause of action arose prior to the amendment.

16. I may also point out that Article 6 to Schedule III, Part I, of the Bengal Tenancy Act, has been held by Mukerjee and Vincent, JJ., in the case of Thakomoni Dasi v. Mohendra Nath Dey 3 Ind. Cas. 389 : 10 C.L.J. 463. to be retrospective. It is Not necessary for me to go through the earlier authorities. It is sufficient for the present purpose to say that I agree with the judgment of Carnduff, J. in Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889.

N. Chatterjea, J.

17. Two questions have been raised in this appeal. The first is whether the plaintiff has a mokarari right to the lands in .dispute, and the second, wheher the suit is barred by the special limitation provided by Article 3, Schedule III, of the Bengal Tenancy Act.

18. The facts appear to be these. The lands in suit were included in a Ghatwali tenure, and the Ghatwal, Kali Lohar, granted a cultivating lease of the land to the plaintiff's grandfather in 1281. Subsequently, in 1285 a registered mokarari lease was granted by the Ghatwal, and it is found that the plaintiff's grandfather and then the plaintiff's father were in possession of the lands down to 1309, when the Ghatwali lands were resumed by the Government and settled with the zemindar, who again settled the same in mokarari with the Ghatwal Kali Lohar. The name of the plaintiff's father appears as tenant of the land in the resumption proceedings. After Kali Lohar obtained the mokarari settlement from the zemindar, he sold the lands to the Chandra defendants and they dispossessed the plaintiff from the lands. Hence this suit.

19. Now a mokarari cannot create a permanent lease binding upon his successor, but Kali Lohar, who granted the mokarari to the plaintiff's grandfather in 1285, acquired a permanent right to the lands in 1902. It is unnecessary to discuss the arguments addressed to us and the authorities' cited in connection with the question of estoppel. The title of the plaintiff in the present case does not rest upon estoppel. The Ghatwali was not resumed under any Statute but under an agreement between the Ghatwal, the zemindar and the Government, and Kali Lohar by surrendering his Ghatwali under the above arrangement could not affect the mokarari right of the plaintiff. In any case it was perfectly open to Kali Lohar after he acquired a permanent interest in the land to confirm the permanent interest which he had professed to create in 1285, and it is found by the Court of first instance that he distinctly recognised the mokarari title of the plaintiff after the, lands had been' resumed and settled with him by the zemindar, and before he sold the lands to the Chandra defendants. This finding has not been displaced on appeal and is supported by evidence. The finding that the Chandra defendants are bona fide purchasers for value without notice of the'. mokarari title, there-' fore, does not affect the mokarari right of, the plaintiff, and the provisions of Section 27, Clause (b), upon which reliance was placed on behalf of the respondents do not affect the. question.

20. I am accordingly of opinion that the plaintiff had a mokarari title. But even if he had no mokarari right, there can be no doubt that he had the right of a non-occupancy-raiyat and the tenancy was recognised by Kali Lohar after resumption of the lands and before the transfer to the Chandra defendants. The latter, therefore, had no right to dispossess the plaintiff.

21. The next question is whether the suit is barred by the special limitation of two years prescribed by Article 3, Schedule III, of the Bengal Tenancy Act. The plaintiff, it is found, was dispossessed in July 1903 (Asar 1310) and the suit was instituted in July 1909. He had as a raiyat holding at fixed-rates or even as a non-occupancy-raiyat, a, period of 12 years within which he could sue for possession of the lands on declaration of his title. But Article 3, Schedule III, of the Bengal. Tenancy Act, which formerly, applied only to occupancy-raiyats, was amended in 1907 and made applicable to all classes of raiyats. The period of two years prescribed by that Article fora suit had already expired from the date of the plaintiff's dispossession, when the amending Act was passed and the Act came into operation at once. The question, therefore, is whether the amending Act aplies to the present case. The case of Munjuri Bibi v. Akkel Mahomed 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. exactly covers the above point. The principle enunciated in that case has been recognised in Bisseshur v. Jasoda Lal 19 Ind. Cas. 391 : 13 C.W.N. 622 : 40 C. 704, by the learned Chief Justice and Mullick, J., and the case, has been followed in Budhu Kumar v. Hafiz Husain20 Ind. Cas. 821 : 18 C.L.J. 274. by Mukerjee and Beachcroft, JJ., but has been dissented from by another Division Bench of this Court (Coxe and Ray, JJ.)-in Barhanuddi Chowdhary v. Lal Khan 21 Ind. Cas. 43. decided on the 16th August 1903. The decision of the majority in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. is binding on every Division Bench until it is overruled by a Full Bench of this. Court or by the Privy Council. The learned .Judges, Coxe and Bay, .JJ., in . the case cited above, were of opinion that the matter is settled by the decision of the Privy Council in Lala Soni Rani v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74., With every respect for the opinions of the learned Judges J think the Privy Council did not decide the point of law which arose in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. and which has been raised in the present appeal.

22. The Privy Council had not to consider the special limitation provided for in the Bengal Tenancy Act, nor any Statute of Limitation coming into operation at once.

23. The question before the Privy Council was whether the Limitation Act XIV of 1859 or the Limitation Act XV' of 1877 was applicable to the case, and their Lordships observed : ' The High Court, rightly holding that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary, held that Act XV of 1877 and not Act XIV of 1859 was the Limitation Act which was applicable to the suit.' As a general proposition, the principle enunciated in the above passage cannot be disputed, apart from the fact that it is laid down by the Privy Council, and in fact, is recognised in the judgments of this Court in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. But the question viz., whether an Act amending even a Statute of Limitation when it comes into force at once applied retrospectively so as to affect causes of action which accrued before the amending Act came into force where the period proscribed by the amending Act had already expired before it came into operation, was hot before, and was not considered by, their Lordships. The question was not, and could not be, raised in the case before the Privy Council, because there was an interval of time between the passing of Act IX of 1871 which repealed Act XIV of 1859 and Act XV of 1877 which repealed Act IX of 1871 and their coming into operation respectively. The principle, therefore, upon which Manjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. was decided, could not possibly apply to the case which was before their Lordships. Their Lordships were not dealing exhaustively with the whole law on the subject of the retrospective operation of the law of limitation, and the general observations made by . their Lordships should, I think, be held to apply only to the particular point which was raised before and considered by their Lordships.

24. The case of Lala Soni Bam v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74. has been considered' by another Division Bench of this Court in Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274. cited above. The 'learned Judges (Mukerjee and Beachcroft, JJ.,) treated the Privy Council decision as laying down merely that the law of limitation applicable to a suit is prima facie the law in force at the date, of the institution of the suit, and followed the ruling in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. In the opinion of those learned Judges, therefore, the Privy Council did not overrule the law laid down in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. I agree with the view taken in the case of Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274. and I am of opinion that the suit is not barred by limitation.

25. The case was then referred to a Full Bench constituted as above.

26. Balm Mohini Mohun Chatterjee, Ambika Tada Chowdhury and Probodh Chandra Dutta, for the Appellant.

27. Babu Sharat Chandra Bay Chowdhury, for the Respondents.

28. Judgment Of The Full Bench.

29. Owing to a difference of opinion a point of law has been stated by Mr. Justice Fletcher and Mr. Justice N. Chatterjee under Section 98 of the Civil Procedure Code and the appeal has accordingly been heard upon that point only by five of the other Judges of the Court. The point of law stated is :

whether the decision of the majority in the case of Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. has been affected by the judgment of the Privy Council in the case of Lala Soni Bam v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74.. The actual decision of the majority in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. was that the special rule of limitation extended to under-raiyats by the amendment in 1908 of the 3rd Article in the 3rd Schedule of the Bengal Tenancy Act did not apply where the dispossession was in 1898 and the suit for recovery of possession was instituted on the 25th of August 1908.

30. The judgment of the Privy Council in Lala Soni Bam v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74. was concerned not with the special law of limitation but with the general law as enacted in Act XIV of 1859 and Act XV of 1877. The suit in that case was instituted on the 4th March 1907 and was brought for the redemption of a mortgage. One defence was the bar of limitation, The plaintiff, sought to meet this plea by setting up certain acknowledgments and relied on the fact that they had been given when Act XIV of 1859 was in force. On the other side it was argued that the case was governed by Act XV .of 1877, and so the plaintiff could not claim the benefit of the law as to acknowledgments contained in the earlier Act. As to this it was said by the High Court : The law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding, unless there is a distinct provision to the contrary. See Gurupadappa Basapa v. Virbhadrapa Irsangapa 7 B. 459. As Act XV of 1877 was in force when the suit was brought and there is no provision in it limiting or postponing its application, Section 19 of the Act applied to the case.' [Shib Shankar Lal v. Soni Ham 3 Ind. Cas. 725 : 6 A.L.J. 931 : 6 M.L.T. 348 : 32 A. 33.]. This statement of the law was approved by the ,Privy Council on appeal, and it is this approval that is supposed to have affected the decision of the majority in Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. It certainly is not a decision on the same Act as that under consideration in Munjuri Bibi's case 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. and as it is the construction and effect of a different Act that was under consideration, the Privy Council judgment cannot be regarded as- a direct authority on the Act not before it.

31. On the contrary the essential conditions of the two cases are so distinct that, in our opinion, it cannot be said that the earlier decision is, in relation to the circumstances of this case, affected by the judgment of the Privy Council. It is an established axiom of construction that though procedure may be regulated by the Act for the time being in force, still the intention to take away a vested right without compensation or any saving is not to be imputed to the Legislature unless it be expressed in unequivocal terms [Cf. Commissioner of Public Works v. Logan (10) (1603) A. C. 355 : 7.2 L.J. P.C. 91 : 88 L.T. 779.]. That this view is not limited to those cases where rights of property in the limited sense are involved is shown by the Colonial Sugar Refining Co. v. Irving (11) (1905) A. C. 369 : 74 L.J. P. C. 77 : 92 L.T. 738 : 21 T. L. E. 513., where it was held that an Act ought not to be so construed as to deprive a suitor of an appeal in a pending action which belonged to him as of right at the date of the passing of the Act. Equally is a right of suit a vested right, and in Jackson v. Woolley (12) 8 El. & Bl. 784 : 27 L.J. Q. B. 448 : 4 Jur. (N.S.) 656 : 6 W.R. 686 : 120 E.R. 292., .the Court of 'Exchequer Chamber declined, in the absence of something putting the matter beyond doubt, to put on an Act a construction that would deprive any person of a right of action vested in him at the time of the passing of the Act. Williams, J., said : It would require words of no ordinary strength in the Statute to induce us to say that it takes away such a vested right.'

32. Here the plaintiff at the time when the amending Act was passed had a vested right of suit, and we see nothing in the Act as amended that demands the construction that plaintiff was thereby deprived of a right of suit vested in him at the date of the passing of the amending Act. It is not (in our opinion) even a fair reading of Section 184 and the third Schedule of the Bengal Tenancy Act as amended to hold that it was intended to impose an impossible condition under pain of the forfeiture of a vested right, and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions, but cannot (in our opinion) govern suits where such compliance was from the first impossible. Its effect is to regulate, not to confiscate. There are thus two positions, where in accordance with its provisions a suit could be brought after the passing of the amendment, it may be that the amendment would apply : but where it could not, then the amendment would have no application. The fact in Lola Soni Bam v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74. did not involve the second of these positions, and we, therefore, hold that the decision of the majority in Munjuri Bibi v. Akkel Mahmud 19 Ind. Cap. 793 : 17 C.L.J. 316 : 17 C.W.N. 889., so far as it relates to that position, has .not been affected by the judgment of the Privy Council in Lala Soni (sic) Kanhaiya Lal 19 Ind. Cas. 291 : 40 I. A. 74 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.E. 489 : 25 M.L.J. 131, 35 A. 227 :, 40 I. A. 74. though it may perhaps be affected if and so far as it lays down a similar rule for suits within the first of the two positions. This, however, is a point not before us and on it, therefore, we do not express any definite opinion. Our judgment is on the question of limitation only and that the result is that we restore the decree of the Munsif with costs throughout.


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