BHUPENDRA NARAIN SINGHA BAHADUR Vs. BAHADUR SINGH

JUDGEMENT

(1.) These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February 1945 reversing the judgment and decrees passed by the District Judge of Birbhum dated 16th December 1936. The principal questions for determination are the same in all of them and can be conveniently disposed of by one judgment.

(2.) It is necessary to set out briefly the history of this half a century old litigation. The seven suits out of which arise Appeals Nos. 68 to 74 were filed in September 1904 by Maharaja Bahadur Singh, in the Court of the different Munsifs at Rampurhat, against Raja Ranjit Singh Bahadur, deceased, and others, for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899 till recovery of possession. It was alleged that the lands in the several suits were chowkidari Chakran lands within the plaintiff's patnidari, granted to his predecessors in interest on 14th November 1853 by the ancestors of the defendant, that as the lands were in possession of village watchmen, on service tenures, they were excluded from assessment of land revenue and no rent was paid on them, that in the year 1899 under the provisions of Ss. 50 and 51 of Bengal Act VI of 1870 Government resumed the lands, terminated the service tenures and settled them with the zamindar, that in this situation the plaintiff's patnidar became entitled to their actual physical possession, that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed. The suits were decreed on 17th August, 1905 and 19th August, 1905 by the two Courts respectively and the decisions were affirmed; on appeal by the District Judge. On special appeal to the High Court, the suits were remanded for trial on the question of limitation, and after remand they were dismissed by the trial Court and the Court of appeal as barred by limitation. On second appeal, it was held that the suits were within limitation and were then decreed for the second time. This decision was affirmed on appeal to His Majesty in Council. The plaintiff actually obtained possession of the lands involved in these suits in August 1913. An application was made for ascertainment of mesne profits on 6th November 1918. This was resisted by the defendant and it was pleaded that the plaintiff was not entitled in interest on mesne profits, that the zamindar was entitled to receive the profits of the disputed lands and that deduction should be made out of the amounts of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him. Five years later, on 24th June 1927 another set of objections was filed by the zamindar claiming deduction out of mesne profits by way of equitable set-off of the payments made by him subsequent to the date of delivery of possession as well as for the amount of munafa that became payable to him after that date. After a prolonged enquiry the trial Court on 18th December 1937 decreed the plaintiff's claim for mesne profits after allowing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable set off for the subsequent period. The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set-off, subject, however, to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defendant's dues were wiped off. The relevant part of his judgment runs thus :

(3.) An application under Order XIX, Rule 4 of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals, viz.: