1. A preliminary point was taken in this appeal that as the suit was brought on behalf of the plaintiffs, who are wards under the Court of Wards, without such authority as is required by Section 55, Act IX of 1879, B.C., it should have been dismissed. It was also urged that, even if it were held that the manager had properly instituted the suit to save limitation under the first proviso of that section, the Court should not have proceeded with it without sanction, which was only obtained on the 17th July 1917 and filed on the 19th July 1917, when all the evidence on both sides bad been taken and argument heard in part. The suit was instituted on the 17th September 1914, defendants Nos. 2, 3 and 4 appeared on the 6th November 1914 and defendant No. 1 a little later. They filed their written statements in April and May 1915. Issues were settled in August 1915. A commission for local enquiry was issued in January 1916. It was returned executed in June 1917. Examination of witnesses began in July 1917 and arguments began, after the whole of the evidence had been given, on the 17th July 1917. No objection was taken to the proceedings by the defendants all this time, but at their instance an issue as to the maintainability of the suit was then for the first time raised. The learned Judge has held that the suit was properly instituted by the manager to save limitation under the proviso above referred to, distinguishing it from Dinesh Chunder Roy v. Golam Mostapha 16 C. 89 Strong reliance has, however, been placed by the learned Vakil for the appellants on Digendra Chunder Sen v. Nritya Gopal Biswas 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N. 419 a recent decision of this Court The trial Judge has rightly held that the manager instituted this suit to save limitation, as appears from his letter to the Collector, dated the 8th September 1914. The section, however, provides that 'such suit shall not be afterwards proceeded with except under the sanction of the Court of Wards.' The learned Judges in Digendra Chunder Sen's case 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N 419 have held that such a suit cannot be proceeded with without such sanction and all proceedings taken subsequent to institution are without jurisdiction and must, therefore, be set aside.
2. I may say at once that I am not prepared to go that length. Section 55 seems to me to be intended for the guidance of managers. It simply lays down that if be files a suit to save limitation, he shall not proceed with it without the sanction of his employer, the Court of Wards. It is not a question of jurisdiction of the Court in which the suit has been instituted, but it seeks to control the action of the manager. There is nothing in the section which prevents the defendants from waiving the stay. To proceed with such a suit is not an assumption of jurisdiction which the trial Court does not possess. The utmost that can perhaps be said is that it is an irregularity in the exercise of its jurisdiction, which cannot be held entirely to vitiate the proceedings. Admittedly the Court had inherent jurisdiction over the subject-matter of the suit and the utmost the defendants could have required was a stay of the proceedings, but they did not ask for such stay and allowed elaborate proceedings to be taken and joined in them. There are numerous authorities which establish that when in a case which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendants cannot subsequently dispute its jurisdiction upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. Ledgard v. Bull 13 I.A. 134 at p. 145 : 9 A. 191 (P.C.) : 4 Sar. P.C.J. 741. In Digendra Chundra Sen's case 43 Ind. Cas. 184 : 27 C.L.J. 125 : 22 C.W.N. 419 the learned Judges directed a trial de novo, to proceed from the stage of filing the plaint. I could never have persuaded myself to make such an order in this case. It would have meant punishing the parties, involving heavy costs and loss of time. The proceedings continued for nearly three years, including local enquiries and examination of witnesses on commission. Nothing was shown or even suggested that the defendants had, in any way, been prejudiced. The manager applied for sanction in time. The plaint was sent to the Legal Remembrancer who approved of it, but it was apparently through an oversight that the Commissioner did not endorse the sanction until the date above mentioned. Duplication of machinery in these matters, sometimes as in this case, leads to unforeseen and unfortunate results, but I cannot bring myself to punish a party unless the law imposes upon me an obligation. The law does not, in my opinion, lay down such a definite bar as has been urged before us.
3. We are both agreed, however, that the suit was properly filed apart from the question of saving limitation. It seems to us to be a suit for rent, which is excepted under Section 55. No doubt the plaint speaks of the amount claimed as balance of the sale price of the Garh, but it refers to the instalments payable under the agreement for settlement of the Garh and to the terms of the lease. The use of the expression 'sale price' is perhaps due to the fact that forest or Garh settlements are frequently made by auction to the highest bidder - the usual Bengali expression for it being 'the sale' of a Garh, or it may be due to certain decisions in which the assignment of the right of cutting trees from a forest appears to have been treated as a contract for sale of the timber. It may also have been used to prevent the defendants claiming suspension of rent on allegations of dispossession from portions of the forest during the subsistence of the settlement or lease. In spite of the claim as worded in the plaint, the defendants treated it as a suit for rent and issues were framed accordingly. See issues Nos. 6, 7 and 8. The document upon which the claim is based Exhibit 25 is described as an agreement for settlement of the reserved Garh for a period of five years at a thika jama of Rs. 61,000, 'the rent' being payable in instalments. It gives the defendants right to out down and sell the valuable trees and to grant sub-leases of such right. It gives liberty to them to get passages made and erect huts to enable the purchasers of the wood to live in them, and to make stockyards. It provides for damages for trespass into the area settled, and for the right of re-entry in case of default of payment of two instalments of 'rent' with liberty to re-settle the Garh and also for reduction of rent in case of deficiency of area, and a duty is cast upon the lessees to inform the Police if any cognisable offence should occur. The covenants bind the parties and their representatives. It is clearly a demise of forest rights and the defendants are treated as lessees of the forest for a period of five years with power to grant sub-leases. It cannot be treated as an agreement merely for the sale of timber. The same view was taken in a document some what of a similar character in Abdulullah Sarkar v. Asraf Ali Mandal 7 C.L.J. 152 at p. 162. In this case there are additional rights, namely, that of building huts and stockyards on the land and to make passages and Ghats for the clearance of timber. In the case above referred to, the learned Judges held that Section 193, Bengal Tenancy Act, was applicable and that it was not rent within the meaning of Section 3 33 C. 601 of that Act. It is to be noted that Act X of 1859 contained no definition of rent. When the Bengal Tenancy Act (1885) was passed, the term 'rent' was defined and given a restricted meaning; Section 193 was introduced, which with Clause (2) of Schedule III substantially reproduces Section 23, Clause (4), and Section 32 of Act X of 1859. In Shib Prosad Chaudhuri v. Vakai Pali 33 C. 601 the learned Judges held that there was nothing in the definition of 'rent' in the Bengal Tenancy Act which excludes fishery rent, although this view is not accepted in Krishna Lal Chowdhury v. Salim Mahomed Chowdhury 27 Ind. Cas. 614 : 19 C.W.N. 514. The expression 'rent' has a more extensive meaning than the definition given to it in the Bengal Tenancy Act. In Peary Lal Daw v. Madhoji Jiban 19 Ind. Cas. 865 : 17 C.L.J. 372 the learned Judges were strongly inclined to treat a suit for royalty payable in respect of a mine as a suit for rent under Article 110, Limitation Act, but did not do so having regard to the oases in which Article 116 had been held to be applicable. The word 'rent' in Schedule III of the Bengal Tenancy Act includes money recoverable under any enactment for the time being in force, as if it was rent. Section 193, Bengal Tenancy Act, provides for the recovery of money payable in respect of forest rights as rent. We do not see any ground for holding that the present suit is not one for arrears of rent. A forest is landed property, and in the present case there is a lease of forest rights and the amount due is treated as rent and we think it is covered by the second proviso of Section 55, Act IX of 1879, and that the suit is maintainable as it was authorised by the manager. This disposes of the preliminary point raised. We decide it against the appellants.
4. They next contend that as they were kept out of possession of some portion of the Garh included in the Pattah, they are entitled to suspension of the rent. This was the ninth issue in the trial Court but nothing about suspension was mentioned in it, compensation for loss having been claimed. It has, however, been put before us as a question of law and, therefore, open to them. This issue relates to Madar Tek and it is said that the plaintiffs did not allow the defendants to take trees from that Tek. The case of the plaintiffs is that the Tek is the Niskar of Madar Saheb and all that they settled with the defendants was the allotment which they had got on partition of the parent estate, namely, Saham No. 10, and that as this Tek was not allotted to them it was not settled with the defendants. A Commissioner was appointed to ascertain what the allotment was. He reported that the major portion of the disputed spot fell outside the Estate No. 10 which bad been allotted to the plaintiffs, and which according to the lease was settled with the defendants. It, therefore, comes to this that Madar Tek was not allotted to the plaintiffs and it was not settled with the defendants. In making the map and upon local investigation it was, however, found that the defendants had not been allowed to cut wood from three small bits, which were considered by the plaintiffs as appertaining to Madar Tek but which really belonged to Estate No. 10. The learned Judge has found that there is no evidence to show that the plaintiffs possessed Madar Tek but that as these three small portions were within the plaintiffs' allotment and the defendants did not get possession thereof, the defendants were entitled to claim compensation for the same, and he allowed Rs. 375 as the value of the trees in those portions. It is quite clear from the findings with which we agree that it was not known to the Raj that these small portions were within the Saham, and it cannot be said that the defendants were tortiously dispossessed of them. We do not think that this is a case for suspension of rent. It is always a matter of difficulty in a forest to ascertain the boundaries with exactitude, because wild growth in course of time encroaches upon other lands in the neighbourhood. It is to be noticed that these three plots shown in the map at stations Nos. 7, 8, 9, 17, 18,19, 30, 31 and 32 are in the boundary line and they were only discovered after careful survey. Several eases were referred to relating to suspension of rent, the basis of the Indian cases being Neale v. Mackenzie (1836) 1 M. & W. 747 at p. 763 : 2 Gale 174 : 6 L.J. (N.S.) Ex. 263, 46 R.R. 478 : 150 E.R. 635 We are unable to hold that any of the cases cited helps the contention put before us, or that the defendant is entitled to suspension of rant on this head, having regard to the above circumstances. We find the learned Judge has rightly allowed Rs. 375 as the value of the trees standing on the disputed area.
5. The defendants further complain that a portion of the Garh settled with them was let out to other parsons and they were dispossessed therefrom, and suspension of rent is also, therefore, claimed before us. This is the 6th issue, but in it the relief asked for was damages. The question arises out of the settlement of Bazar Garh with other parties, which was made before the settlement with the defendants. The learned Subordinate Judge has found that the defendants' lease did not include Bazar Garh and that the plaintiffs did not let out any portion of the Garh settled with them to other parties, nor did the plaintiffs give the other parties any right to out a certain class of trees known as Ajugi trees which they had settled with the defendants. These other parties did out such trees, but they were sub-lessees of the defendants, under a written document, and if they exceeded their right as such, the defendants had their remedy against them and the plaintiffs are not in any way liable to the defendants therefor. We entirely agree with the findings of the learned Subordinate Judge and hold that he was right in deciding the issue against the defendants. Upon the findings no question of suspension of rent can arise.
6. The defendants further allege that they were unjustly prohibited from cutting the wood and selling it for a period and they are, therefore, entitled to suspension of rent during that period, and great reliance is placed on Dwijendra Nath Roy Chaudhuri v. Aftabuddi Sardar 39 Ind. Cas. 209 : 21 C.W.N. 492 : 25 C.L.J. 53 and Rani Lalita Sundari v. Rani Surnomoyee Dasi 5 C.W.N. 353. This is the subject matter of the 8th issue. The learned Judge has found that the plaintiffs did not allow the defendants to out and sell the wood for a certain period on the allegation that they had failed to pay the rent regularly. There is a stipulation in the agreement that in case of default of two successive instalments the lessor was entitled to take possession of the Garh. Two orders were issued on that basis by the plaintiffs to their servants, one dated the 11th Aghran 1315 and another on the 25th Joista 1316, which was withdrawn on the 11th Srawan 1316, (Exhibits J & K), not to allow the defendants to out and sell the trees. These orders were improperly made. The defendants had not made default in the payment of two successive instalments. With regard to this matter, however, the defendants did not ask for suspension in the trial Court but claimed compensation. The learned Judge has not, therefore, found what was the period during which the defendants were not allowed to out and sell the wood. From the evidence as it stands, it is difficult to find the period with any degree of exactitude. The defendants had sub-let the Garh to different parties and these sublessees have been examined on this point. They vary in their statements. Some say they were stopped for two or three days only and some say 10 or 15 days, and one witness (witness No. 8) said it was four or six months. Their own amlah, witness No. 11, said there were three prohibition orders, all verbal, which, lasted 10, 20 and 30 days respectively. This is not borne out by the written orders above referred to. We think, however, that having regard to the agreement which contains a special covenant, the defendants are not entitled to ask for suspension. It runs as follows:
If you do not pay rent in proper time according to the instalments given in this deed, or if we suffer any loss by any act done by yon, or if you suffer any loss by any act done by us, then we and you shall be responsible for the damages for losses respectively suffered in this way and such damages due to either party will be recoverable through the Court.' The defendants in their written statement, paragraph 8, claimed damages to the extent of Rs. 7,000 on this head, but they preferred a claim with regard to this very matter for Rs. 1,100 only before the Board of Revenue which has control over the Court of Wards, Exhibit 24, dated 4th November 1911. The defendants have not produced any books or any documentary evidence to show what loss they have sustained. They have not given satisfactory evidence as regards the exact period during which the order remained in force and have merely relied upon the oral testimony of their sub lessees. The learned Subordinate Judge has summarised that evidence in his judgment and allowed Rs. 150 only on this head. The sublessees did not produce any documentary evidence but said they obtained remission of the amounts payable by them in consequence of the prohibitory orders. We have carefully gone through that evidence. Witnesses Nos. 1 and 2 do not speak about any amounts remitted to them on this head. Witness No. 4 speaks about an allowance of Rs. 100 to Rs. 125 only; he says he suffered no loss on account of the second prohibitory order but on account of the first. Receipts are not produced by him, although he obtained them; he does not even know if remission was entered in them, but he says the amount remitted was entered in the defendants' book. Witness No. 6 says that he did not suffer much loss. He obtained some remission, but cannot say if it was on account of the prohibition. He got a remission of Rs. 50 only. Witness No. 7 says that he suffered loss and got remission to the extent of Rs. 150 or Rs. 175 but it was not on account of prohibition only, but other matters were also taken into account. He says his receipts do not show that he received any remission. Witness No. 8 stated that he obtained remission of Rs. 100 or Rs. 125, which included Rs. 50 or Rs. 60 for opening roads. He does not produce any books of account or receipts. Witness No. 9 said that he had obtained remission of Rs. 600 or Rs. 700 bat he changed the figures to Rs. 500 or Rs. 600 in cross-examination. This was, he said, for various reasons including the loss, he said, he sustained for not having been allowed to out wood in Madar Tek which he said had been sub let to him by the defendants. Madar Tek, as we have found, was not let out by the plaintiffs to the defendants, and, therefore, any remission made to him by the defendants, for Madar Tek, ought not to be taken into account. The defendants have admittedly account books which they have not filed. and it is difficult having regard to the vagueness of the evidence given by their witnesses to arrive at a definite figure. The defendants have apparently realised the rent at which the Garh was sub-let by them to their sub-lessees and it was quite possible for them to show bow much remission they had granted. The learned Subordinate Judge has taken the figures given by witnesses Nos. 4 and 8, but having regard to the indefinite character of the evidence of witnesses Nos. 6 and 9 he did not take them into consideration. We think, however, that something more ought to be allowed having regard to their evidence, and we, accordingly increase the amount awarded to Rs. 300.
7. The next issue that we shall deal with is about making roads for the convenience of the defendants. There is a stipulation in the agreement that in default of the plaintiffs getting passages opened by their men in proper time, the defendants will be at liberty to get such passages made at their own cost for which they will get credit out of the money payable by them to the plaintiffs. The plaintiffs admittedly did not open up any passages and there can be no doubt from the evidence that passages were opened by the defendants at their own cost. The account books produced by the defendants for 1314 and 1315 show that the. cost of preparing the roads was Rs. 351-6-6, but these account books have not been properly proved. The handwriting of the entries has been proved, but the persons who wrote the account books or spent the money have not been called, In the petition to the Board of Revenue, Exhibit 24, the defendants claimed Rs. 400 as loss for not making roads. The oral evidence is of an unsatisfactory character. Various estimates are given about the cost, ranging from Rs. 3 or Rs. 4 to Rs. 1,000. The learned Judge has accepted the evidence of the defendants' witness No. 1 who was a sub-lessee and has allowed Rs. 29 only. We think this amount inadequate. The defendants certainly made one or two big roads by cutting down the jungle, and we think that it would be just to allow the defendants Rs. 350 on this head, which is practically the amount mentioned in the account book, and we direst that sum to he deducted from the amount of the rent claimed.
8. The defendants also claimed credit for Rs. 1,500, said to have been paid as rent but misappropriated by the servants of the plaintiffs. This item was, however, given up by the learned Vakil for the defendants, and we need not, therefore, consider it.
9. A further issue was raised as regards the interest claimed by the plaintiffs. Exhibit 25 provides for it and the plaintiffs have shown that interest was realised from the defendants. We hold that the plaintiffs are entitled to interest.
10. The learned Subordinate Judge has allowed the defendants credit to the extent of Rs. 554 altogether, namely, Rs. 29 for the roads, Rs. 150 for the prohibitory order and Rs. 375 for the timber which stood on the three little tracts adjoining Madar Tek. We vary those sums as follows: namely, Rs. 350 for roads and Rs. 300 as compensation for the prohibitory order, increasing the amount to Rs. 1,025. Proportionate amount of costs on the above basis. Except as aforesaid, the appeal is dismissed. Hearing fee is assessed at Rs. 300.
11. I agree.