Patna High Court
Midnapur Zemindary Co. Ltd. vs Jaga Nath Sarangi And Ors. on 17 August, 1920
Equivalent citations: 59IND. CAS.314
JUDGMENT Jwala Prasad, J.
1. The only Contest in this case is as to whether the claim for rent for the years 1319 to 1321 was barred by limitation or not. The learned Judicial Commissioner, disagreeing with the Deputy Collector, has held that it was barred.
2. The plaintiffs have appealed and dispute the correctness of the view taken by the Judicial Commissioner. Their contention is that, the period of limitation should be computed from the 5th February 1918, when their share of the consolidated rent payable by the defendants jointly to them and the other landlord, Zemindar of the Barabhum Estate, was determined by a decree in an apportionment suit instituted by them against the defendants and the said Zemindar, and that the suit instituted in September 1918 is within time. The contention appears to be well founded.
3. The defendants are tenure holders of two Mouzas, Baram and Sarangidih, bearing Touzi No. 307, for which they used to pay a consolidated annual jama and cess of Rs. 80 odd jointly to the plaintiffs and the Zemindar of Barabhum under the Chota Nagpur Encumbered Estate Mangement. At the last Settlement in 1910, the mousas were separately recorded; Baram in the name of the plaintiffs and Sarangidih in the name of the Barabhum Zemindar, but the rental payable to the two landlords was not apportioned.
4. The plaintiffs thereafter sued the defendants for rent for the years 1319 and 1320, making the Barabhum Zemindar a pro forma defendant. That suit was contested by both the sets of defendants and was dismissed by the Trial Court on the 6th June 1913 on the ground that it was not in proper form and the plaintiffs' share of rent was not specified. This decision was upheld by the Appellate Court on the 8th February 1915, pointing out that the plaintiffs were not entitled to institute the suit unless their share of rent in respect of village Baram was apportioned and the plaintiffs' prayer for amendment of the plaint by framing it according to Section 142 of the Chota Nagpur Tenancy Act was rejected. Consequently, the plaintiffs instituted a suit for apportionment of rent and for determination of their share of the rent payable by the defendants.
5. The judgment (Exhibit 2) shows that both the sets of defendant?, the tenure-holders and the Barabum proprietor resisted the plaintiffs' claim for apportionment, the former on the ground that the rent was payable in one lump and should not be apportioned, and the latter on the ground that the plaintiffs were not entitled to the proportionate share claimed by them. Their objections were overruled and the rent was apportioned and the plaintiffs' share was determined on the 5th February 1918. No doubt, under Section 52 read with Section 234, of the Chota Nagpur Tenancy Act, the rent falls due on the last day of each quarter of the agricultural year and the suit for arrears of rent should be brought within three years from the end of the agricultural year in which the arrear became due. But the right to recover rent is, under certain circumstances, such has those in the present case, deemed to have been held in suspense and when the right is revived a fresh cause of action arises and the time to bring an action for rent commences from the date of revival of the right. This principle is to be gathered from the decision of their Lordships of the Judicial Committee in the case of Ranee Surnomoyee v. Shooshee Mokhee Burmonia 11 W.R. (P.C.) 5 : 2 B.L.R. (P.C.) 10 : 12 M.I.A. 244 : 2 Suth. P.C.J. 173 : 3 Sar. P.C.J. 424 : 20 E.R. 331. In that case the Zemindar had purchased the holding in execution of his rent-decree. The sale was subsequently set aside on the application of the judgment-debtor. The suit for arrears of rent which accrued during the pendency of the proceedings to set aside the sale was necessarily instituted after more than three years from the date they became due. Their Lordships held that Section 32 of Act X of 1859, similar in its provision to Section 234 of the Chota Nagpur Tenancy Act, did not bar the suit, and that the arrears of rent were suspended and became actually due when the sale was set aside and the holding was restored to the tenant, The principle enunciated by their Lordships was applied in the cases of Eshan Chunder Roy v. Khajah Assanoollah 16 W.R. 79 : 8 B.L.B. 537 note; Deen Dyal Paramanick v. Radha Kishores Debee 17 W.R. 415 at p. 416 : 8 B.L.B. 536; Rangayya Appa Rao v. Bobba, Sriramulu 27 M. 143 (P.C.) : 8 C.W.N. 162 : 14 M.L.J. 1 : 6 Bom L.R. 241 : 31 I.A. 17 : 8 Sar. P.C.J. 617 and Raghunath v. Sarva 12 Ind. Cas. 804 : 7 N.L.B. 169. Some of these cases are directly applicable to the present case.
6. In order to enforce the share of rent in respect of a portion of the holding falling in the Takhata of a proprietor, he must get his share of rent determined in a proper apportionment suit, making the tenant and the other co-proprietors parties thereto and, unless that is done, he cannot institute a suit for his share of the rent. This is a familiar procedure and is applicable to the present case. The plaintiffs, therefore, could not enforce their share of the rent due from the defendants without having it determined in the apportionment suit, the decree wherein was passed on the 5th February 1918. As a matter of fact, the plaintiffs' attempt to recover the rent; without the apportionment suit failed and; the objection to the maintainability of the suit without the rent having been apportioned in a proper suit prevailed, I do not understand how the plaintiffs could have succeeded in recovering their share of the rent by bringing a suit under Section 142 of the Chota Nagpur Tenancy Act for, after the mouzahs were separately recorded at the Settlement of 1910, the plaintiffs ceased to be co-sharers with the Barabhum Estate.
7. A part from this, the Appellate Court in the rent suit clearly held that the claim for separate rent was not maintainable unless the plaintiffs' share was determined. I am, therefore, afraid the Court below is wrong in thinking that there was no necessity for the plaintiffs to go to Court to have the proper rent determined," and that they could have sued for rent making the Encumbered Estate a pro forma defendant. In the apportionment suit itself both the sets of defendants objected to the maintainability of the suit and raised a distinct issue (No 1) in that case. The Court overruled the objection and held that the suit was necessary, inasmuch as without it the plaintiffs could not institute a suit for recovery of their share of the rent. It is no longer open to the defendants to say that the plaintiffs could bring a suit for rent without having recourse to the apportionment suit.
8. It is then said that the plaintiffs could institute the suit during the pendency of the apportionment proceedings before three years which elapsed from the date the arrears became due. Such a contention was overruled by their Lordships of the Privy Council in the cases referred to above Their Lordships pointed out the fact that the Zemindar in that case could sue for rent during the pendency of the proceedings, did not bar his right to institute a suit after the determination thereof.
9. I therefore, disagree with the view taken by the Court below and agree with that taken by the Trial Court, and hold that the plaintiffs' right to bring the present suit for rent accrued on the 5th of February 1918. and their claim for rent for the years in suit is well within time.
10. The result is, that the appeal succeeds and the plaintiffs' suit is decreed with costs throughout.