Patna High Court
Kali Prasad Mahton And Anr. vs Santlal Mahton And Ors. on 17 January, 1957
Equivalent citations: AIR1957PAT442, 1957(5)BLJR537, AIR 1957 PATNA 442, ILR 36 PAT 381
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This Letters Patent Appeal is from the judgment of Mr. Justice S.K. Das, as he then was, in a second appeal. He allowed the appeal of Santlal, plaintiff 3, and set aside the concurrent judgments and decrees of the courts below, and, decreed the plaintiff-appellant's suit.
2. Two questions arise for decision in the appeal: (i) Whether there was estoppel against the plaintiff? and (2) whether the plaintiff's suit was barred by limitation?
3. The disputed land, plot No. 446, under khata No. 469, in khewat No. 2, in village Bhitnaili Khemchand, is mokarri istimarari tenure, and is recorded in the names of Lachmi Prasad (defendant 8) and his brother Kamla Prasad, having -/5/4 share therein. On the 8th June, 1922, they mortgaged their 5 annas 4 pies share to plaintiff 3, Santlal, who took the mortgage in the benami name of defendant No. 6, his own) brother-in-law, being the brother of his wife, Mst. Biranchibati. Thereafter, on the 7th November, 1923, they sold their interest in the tenure to one Jagat Narain, who in his turn, on the 15th October, 1925, sold it to Santlal, plaintiff S, who got the sale, in the name of defendant 7, who was the son of his brother-in-law, defendant No. 6, his admitted benamidar.
4. In 19'29, the Darbhanga Raj, who was the superior landlord, brought a rent suit for recovery of arrears of rent in respect of the tenure against the recorded tenants Lachmi Prasad and Kamla Prasad, and two others, including Mst. Biranchibati, the wife of Santlal. A decree was obtained, and, in execution of the decree, the tenure was sold on the 11th of March, 1931, and purchased by Misri Lal, predecessor in interest of defendants 1 to 3, and, Kishun Prasad, defendant 4. By some family arrangement, the property purchased by them has now fallen to the share of defendants 3 and 4, who alone contested the suit, and, who are the appellants before this court.
5. The auction sale held on the 11th of March, 1931, was confirmed on the 16th of March, 1932, and, the auction-purchasers obtained delivery of possession over the auctioned tenure sometime in August 1932. The plaintiff 3 filed an application under Order XXI, rule 90 of the Code of Civil Procedure for setting aside the sale, but he was unsuccessful.
6. Ultimately, on the 27th of August, 1943, the plaintiffs, Santlal and his two sons, brought a suit, for declaration of title and recovery of possession, in respect of the disputed khewat 2.
7. The suit was valued at Rs. 205/-, which was the price, for which the tenure was sold on the 11th of March, 1931. The question of valuation was raised, and, it was held that the proper valuation was Rs. 4,500/-. As that amount exceeded the pecuniary jurisdiction of the Munsif, where the suit had been, instituted, the plaint was ordered to be returned on the 14th of September, 1945, but it was actually returned on the 15th of September, 1945. The plaint was thereafter represented before the Subordinate Judge on the 17th of September, 1945.
8. Plaintiff 3's claim was that his interest in the tenure, which he had purchased from Jagat Narain on the 15th of October, 1925, was not affected by the rent sale, held on the 11th of March, 1931, as he was not a party to the rent suit brought by the superior landlord in 1929 against the recorded tenants, or to the decree in which the decree under execution was obtained.
9. Mr. Justice Das, in the second appeal, held, in disagreement with the courts below, that there was no estoppel against the plaintiff; and, as neither the plaintiff 3 nor his benamidar, defendant No. 7, had been made parties to the rent suit brought by the superior landlord, the plaintiff 3's interest to the extent of -/5/4 in the tenure did not pass at the rent sale, and, as such, the plaintiff 3 was entitled to get back possession of that interest, provided the suit was not barred by limitation. On the question of limitation, his Lordship held that plaintiff 3 was entitled to the benefit of Section 14 (1) of the Limitation Act, and, as such, he was entitled to exclude the time taken in prosecuting the suit before the Munsif, and, therefore, the suit was not barred by limitation. In view of these findings, he set aside the judgments and decrees of the first two courts dismissing the plaintiff's suit and decreed their suit, declaring that the title of plaintiff 3, in respect of -/5/4 interest in the tenure was not affected by the rent sale, and, therefore, plaintiff 3, who was the sole appellant before him, was entitled to recover possession thereof.
10. The present Letters Patent Appeal has been presented by defendants 3 and 4, on a certificate granted by Mr. Justice Das under Clause (10) of the Letters Patent, against his above judgment.
11. Mr. R.S. Chatterji, appearing for the appellants, has submitted that Santlal, plaintiff 3, was estopped from challenging the sale, held in execution of the rent decree, by reason of the fact that he held out his wife, Mst. Biranchibati, as the owner of the tenure, and she was a party to the rent decree in execution of which the tenure was sold. In support of his plea of estoppel, Mr. Chatterji has relied on Jaideb Thakur v. Jamohir Misser, AIR 1923 Pat 206 (A), and, Ali Mahamad v. Aftabuddin Bhuya 20 Cal WN 355: AIR 1916 Cal 930 (B).
12. In the first place, the question of estoppel, does not arise in the present case. For the application of the principle of estoppel, there must be some declaration, act or omission on the part of the person against whom estoppel is sought to be applied which intentionally caused or permitted the person aggrieved to believe that statement and to act upon such belief. In the present case, the necessary facts for the application of the principle of estoppel were not averred. No issue was raised on the question of estoppel. It has not been shown what declaration, act or omission on the part of Santlal intentionally caused or permitted the superior landlord or the auction-purchasers to believe that his wife, Mst. Biranchibati was the owner of the tenure, and to act upon such belief.
What Santlal alleged in the plaint and sought to prove was that Mst. Biranchibati was in possession as raiyati in respect of the entire tenure, and, her possession was alleged by Santlal to be by virtue of raiyati settlement of the entire tenure from the tenure-holders, but this plea was disbelieved by the courts below. In these circumstances, it is difficult to understand how can Santlal be estopped from saying that his right had not been affected by the rent sale. In, my judgment, Das, J. rightly held that there was no estoppel against Santlal.
13. In the second place, the cases relied upon by Mr. Chattarji have no application to the present case.
14. In the Patna cases, P.R. Das, J. with whom Adami, J. agreed, observed:
" ..... so far as tenures are concerned, the Bengal Tenancy Act makes it obligatory upon the tenants to have their names recorded in the landlord's sherista whenever they become entitled to them by succession. In the case of a tenure, therefore, where only one tenant takes the trouble to have his name recorded in the landlord's sherishta, and the others, either by design or negligence fail to do so, it may be presumed that the tenants who failed to have their names recorded in the landlord's sherishta consented to the tenant who had his name recorded, representing them both in transactions and in suits affecting the landlord and the tenants."
Das, J. however, further observed:
" ..... it is a question of fact in each case whether the recorded tenant does in fact represent the holding in dispute and that the fact that only one tenant is registered is an item in the evidence upon the question whether he is or is not the representative tenant qua the landlord."
15. In the present case, the first court of appeal, on the evidence, found as a fact that Biranchibati was not recorded in the landlord's sherishta, and, that the landlord , did not implead her as a party to the rent" suit alleging her to be a recorded tenant; and as such the decree obtained in her presence could not be considered to be a decree against a tenant representing the holding before the landlord by consent. On this finding, therefore, Biranchibati was never held out by her husband Santlal, plaintiff 3, as the owner of the tenure.
16. For the above reasons, the Calcutta case also has no application here. In the Calcutta case, it was held by a Division Bench that if a transferee of permanent tenure allows the transferor (the original tenure holder) to re-
present him to the landlord, he cannot take exception to the sale of his interest in execution of a decree for arrears of rent in a suit brought by the landlord against the original tenure-
holders without making the transferee a party thereto. Here, there is no finding of the first court of appeal, which was the final court of facts, that Santlal allowed his wife Biranchi bati, to represent him to his landlord.
17. In my judgment, the principles laid down by the Judicial Committee in Jagdishwar Dayal Singh v. Dwarka Singh, ILR 12 Pat. 626: (AIR 1933 P.C. 122) (C), and by the Letters Patent Bench of this court of Chandrasekhar v. Jagarnath, ILR 24 Pat. 148 : (AIR 1945 Pat 313) (D) apply to the present case. The disputed land, in the instant case, was a permanent tenure, which under Section 11 of the Bihar Tenancy Act, was capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property. A transferee of a portion of a permanent tenure not impleaded in the rent suit is not affected by the decree for rent obtained by the landlord against the recorded tenant only. That a recorded tenure-holder has not got his name entered in the landlord's sherishta, nor paid rent, nor been recognised by him as a tenure-holder, are not circumstances which justify him in selling, if he has not been joined or represented in the rent suit. After a recorded tenant has transferred his tenure to another person, and, that transfer has been duly registered under the provisions of the Bihar Tenancy Act, he is no longer liable for the rent of the share although the landlord may not have received actual notice of such transfer.
There is nothing in Section 11 of the Act, or in the other provisions of the Act, to suggest that the title of the transferee is not complete, even until the landlord receives notice of the transfer. The liability here is a liability in sequence of the estate, and, it is an ordinary rule that the liability ceased when the estate is transferred and the vendor ceases to have any interest in the property. In my opinion, therefore, the decision of Mr. Justice Das, holding that neither Santlal nor his benamidar having been made parties in the rent suit brought by the superior landlord, the interest of -/5/4, which Santlal had acquired in the tenure, did not pass at the rent sale, and, as such, Santlal was entitled to get back possession of that interest provided the suit was not barred by time is correct. I would, therefore, overrule the plea of estoppel.
18. Mr. Chatterji has next argued, with great vehemence, the question of limitation. He has put his argument on the plea of limitation in two ways.
19. In the first place, he argued that Article 12 (a) of the First Schedule of the Indian Limitation Act, would apply to the present case, and, therefore, the plaintiffs* suit was barred by limitation, because the sale was confirmed on the 16th March, 1932, whereas even the first suit was brought on the 27th August, 1943, although the second suit was brought on the 17th September, 1945, much later. Article 12 (a) " provides that a suit to set aside a sale in execution of a decree of a civil court must be brought within one year, when the sale is confirmed, or, would otherwise have become final and conclusive had no such suit been brought. Article 12 (a) has, however, no application to the present case, setting aside the sale, but he has brought a suit as a consequential relief, he has asked for a declaration that as he was not a party to the decree under execution, his interest in the tenure sold was not affected by the sale, and as a consequential relief, he has asked for possession also. In such circumstances, such a suit is not governed by Article 12(a). The first branch of Mr. Chatterji's contention must, therefore, be rejected.
20. In the second place, he has argued that even if Article 142 of the First Schedule of the Indian Limitation Act, which provides a period of twelve years for an institution of a suit for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession, from the date of the dispossession or discontinuance, is applied, the plaintiffs' suit having been instituted on the 17th September, 1945, beyond twelve years from the delivery of possession in August, 1932, was barred by limitation. He has relied on the Full Bench decision of this court in Gabriel Christian v. Chandra Mohan Missir, AIR 1936 Patna 45: ILR 15 Pat 284 (E). In this case, Section 12 of the Indian Limitation Act was construed, which question does not arise in the present case, and as such this case has no application to the present case.
21. Mr. Chatterji, in support of his plea of limitation, based on Article 142, has put forward the argument that, no doubt, the first suit was brought on the 27th August, 1943, that is, within twelve years from the date of delivery of possession in August, 1932, but the present suit, out of which the present appeal arises, was instituted on the 17th September, 1945, which is beyond twelve years and, as such, the plaintiff's suit was barred by limitation, in that, Section 14(1) of the Limitation Act cannot come in aid to the plaintiffs to save limitation, because the period of limitation expired long before the institution of the present suit on the 17th September, 1945.
22. Mr. B. C. De, who appeared for the plaintiff-respondent 1, however, in reply, contended that when the previous suit was instituted on the 27th August, 1943, the plaintiff instituted the suit within eleven years, and, therefore, he was entitled to exclude under Section 14(1) of the Limitation Act the period between the 27th August, 1943, and the 15th September, 1945, during which period the suit was pending before the Munsif, who was found subsequently to have no pecuniary jurisdiction to entertain it, and, add one year, which is the remaining 'period out of twelve years' limitation, to the 15th September, 1945, and, therefore, the plaintiff's suit instituted on the 17th September 1945, was much within time. In support of his contention, he has relied on Anil Kumar v. Promatha Nath, 52 Cal W.N. 316 (F), Nrityamoni Dassi v. Lakhan Chandra Sen, ILR 43 Cal. 660 : (AIR 1916 P. C. 96) (G), and, Maqbul Ahmad v. Onkar Pratap Narain Singh, AIR 1935 P. C. 85: 62 Ind. App. 80 (H). In my opinion, the last case of the Judicial Committee in Maqbul Ahmad (H) (Supra) is on all fours with the present case, and, is a complete answer to the argument advanced by Mr. Chatterji, and as such, it is not necessary to notice the other cases relied upon by Mr. De.
23. Section 14(1) of the Indian Limitation Act, with which we are concerned, reads thus:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.
(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it, X XX XX"
24. It is well settled that if the same relief is claimed in two suits or proceedings, and if both the suits or proceedings are for obtaining the same relief, and not otherwise, there can be exclusion, under Section 14(1) of the Limitation Act, of time occupied by the first suit or proceeding. In the present case, as rightly ob served by Das, J, it was not disputed that the suit, which the appellants had originally brought in the court of the Munsif, was against the same defendants, and, the proceeding was founded, upon the same cause of action. It is also not disputed that the Munsif was unable to entertain the suit on the ground of want of pecuniary jurisdiction when the valuation was fixed at Rs. 4,500/-. The finding of Das, J, that the mistake of the plaintiffs in putting the valuation at Rs. 205A was not mala fide has not been challenged by Mr. Chatterji before us. Mr. Chatterji has also not challenged that the plaintiff Santlal was entitled to the benefit of Section 14 (1) of the Limitation Act, but he has argued that as the period of limitation expired during the pendency of the suit, therefore, the suit instituted on the 17th September, 1945, cannot be said to be within time, in that, the plaintiff wag not entitled to add the remaining period of one year to the 15th September, 1945, to ascertain the date of the expiration of the prescribed period of limitation.
25. As observed earlier, precisely the same question, which has arisen now, arose before the Judicial Committee in Maqbul Ahmad, (H) (Supra). Lord Tomlin, in delivering the opinion of the Board, observed.
" .....whereas in Section 14, and other sections of a similar nature in the Act, the direction begins with the words: 'In computing the period of limitation prescribed for any application', certain periods shall be excluded. It, therefore, seems to their Lordships that, where there is ground for excluding certain periods under Section 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained."
26. It should be borne in mind that rules of equity have no application when there are definite statutory provisions specifying the grounds on the basis of which the stoppage or suspension of running of time can arise. While the courts necessarily can checkmate or fight fraud, it should be equally borne in mind that statutes of Limitation are statutes of repose, while the plaintiffs were bona fide litigating for plaintiff, Santlal, from the date of the delivery of possession in August, 1932, but it would equally, without doubt, remain in suspense, while the plaintiffs were bona fide litiating for their rights in a court of justice. In the suit instituted by the plaintiffs before the Munsif on the 27th August, 1943, they had in that connection asked for an adjudication of their rights, but the learned Munsif for want of pecuniary jurisdiction could not entertain the suit and therefore, returned the plaint for being presented before the proper court, which was ultimately done on the 17th September, 1945, before the Subordinate Judge. If, therefore, the period from the 27th August, 1943, to the 15th September, 1945, during which the plaintiffs were litigating for their rights, is deducted, their present suit instituted on the 17th September, 1945, would be much within time.
27. On the above mentioned authority of the Judicial Committee, it is plain that where there is ground for excluding certain period under Section 14(1), in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period. In the present case, therefore, the prescribed period being twelve years, and, two years 18 days, which is the period between the 27th August, 1943, when the first suit was instituted before the Munsif, and, the 15th September, 1945, when the plaint was returned by the Munsif, for being relied before the Subordinate Judge, and which ought to be excluded under Section 14(1) of the Limitation Act, being the period during which the suit was pending before the Munsif, in order to determine when the prescribed period expires, two years 18 days have to be added to the twelve years; and, the date of the expiration of the period is thus ascertained, which is August, 1946 counting from August, 1932, when the delivery of possession was effected; and, therefore, the suit having been instituted in September, 1945, would be much within time. In my opinion, therefore, the plea of limitation was rightly overruled by Mr. Justice Das.
28. For the reasons given above, I am of opinion that the judgment of Mr. Justice Das is correct, and, therefore, it is hereby affirmed.
29. In the result, the appeal fails, and is dismissed with costs.
Ramaswami, C.J.
30. I agree.