SRI RATHNAPUREESWARASWAMI TEMPLE, TIRUVALAPUTHUR REPRESENTED BY ITS EXECUTIVE OFFICER, S. SUBBIAH Vs. R. NAGARATHNAM

JUDGEMENT

(1.) The plaintiff Devasthanam in a suit for arrears of rent from agricultural land is the appellant in this second appeal. In an auction held by the plaintiff devasthanam the defendant became the highest bidder for the lease of the land for fasli 1366 at a fixed rent of 120 kalams of paddy and nineteen bundles of straw and a moiety of catch crops.

(2.) It is the admitted case of the parties that subsequent to the auction and the acceptance of the lease, no written contract was entered into between the parties. This suit has been filed for the recovery of the balance of arrears of rent for the fasli in question. The suit was filed on 31st March, 1960. The plaint states that the cause of action for the recovery of rent arose on 31st March, 1957, the last day of the agricultural year. As far as the catch crops were concerned the produce had to be shared and so the share was payable when the produce was realised or harvested and that was in April, 1957. The main defence is limitation. It is pleaded for the defendant that the shamba harvest from which rent was to be paid was over by the 15th of February, 1957, and the suit instituted beyond three years from that period was barred by limitation. In answer to the plea of limitation the plaintiff 'put forward two aspects of the matter. First it was argued that limitation did not start running in the case as there were proceedings for determination of the fair rent in respect of the land and that till the proceedings ended one way or other, the cause of action did not arise. It is seen that the tenant filed two petitions. P. No. 5 of 1957 in the Rent Court was for remission on the ground that the crops were affected by pest. 25 per cent for remission was granted and it became final. The other P. No. 160 of 1957 for the fixation of fair rent had a chequered career. There was an appeal, a remand and a revision to this Court. Ultimately the Devasthanam succeeded and it was held in October, 1960 that the tenant was not entitled to the fixation of fair rent for the land in question. In support of the proposition that these proceedings could be relied upon as saving limitation, reference was made by the learned Counsel, Mr. T.K. Subramania Pillai to the decision of the Judicial Committee in Rangayya Appa Rao v/s. Bobha Sriramulu, L.R. 31 I.A 17 :, 1903 14 M.L.J. 1 :, I.L.R. (1903) Mad. 143., The argument pressed before me relying on this decision is that till the fair rent was fixed for the land in question it could not be said that rent has become due. Article 110 of the Limitation Act, 1908 which is the Article applicable provides a period of three years commencing from when the arrears became due. Mr. T.K. Subramania Pillai contends that in the case of an agricultural tenant when the Fair Rent Act is in operation rent could not be considered to be due until the fair rent is finally fixed in proceedings under the Act. It is stated that in the present case proceedings were commenced under the Act before the expiry of the Fasli and it cannot be said that the rent had fallen due at any time anterior to the final disposal of the application for fixation of fair rent. In the view I am taking on the second point, it is unnecessary to decide this point and I may say that prima facie this argument does not appeal to me. It cannot be said that the rent falls into arrears and becomes due only after fair rent is fixed. The process of fixation of rent may take considerable time. The Act itself does not suspend the running of the period of limitation or interdict institution of suits till the determination of fair rent. The contract rent may normally be assumed to be the fair rent. The Fair Rent Act only fixes what the proper rent is. If the rent has fallen due by then, the determination of the fair rent will relate to the rent payable. If the plaintiff filed the suit as per the contract and later fair rent is determined, as regards the quantum of rent the civil Court will be bound by the decision of the Rent Court. In the absence of any statutory provision staying the suit for recovery of rent, it cannot be said that the limitation for a suit in the civil Court for the recovery of arrears is even suspended. So far as the case before the Judicial Committee is concerned, it was no doubt held that where it is necessary for the landlord to take proceedings under the Madras Act VIII of 1865 to have the proper rate of rent ascertained the period of limitation in a suit for arrears of rent runs from the date of the final decree determining the rent and not from the close of the Fasli year for which the rent is payable. The basis of the decision is Sec. 7 of the Act, VIII of 1865 whereby it is provided that no suit brought and no legal proceedings taken to enforce the terms of a tenancy shall be sustainable unless pattas and muchilikas have been exchanged as provided or unless it be proved that the party attempting to enforce the contract had tendered such a patta or muchilika as the other party was bound to accept or unless both parties shall have agreed to dispense with pattas and muchilikas. Sec. 9 provides that when a tenant shall for one month after demand have refused to accept such a patta as the land holders specified in Sec. 3 are entitled to impose and to grant his muchilika in exchange it shall be lawful for such landholders to proceed by a summary suit before the Collector to enforce acceptance of the patta. Their Lordships observed (pages 150 and 151).

(3.) The Courts below are of the view that the claim is barred by limitation as the rent fell due by about 15th February, 1957 and the suit has been instituted only on 31st March, 1960. The Courts below accepted the argument on behalf of the defendant that the rent was payable as and when the crops were harvested. As stated at the outset, there is no written contract embodying the terms of the tenancy and no materials were placed before the Court as to the terms of the tenancy. The Courts below approached the determination of the question as to when the rent fell in arrears throwing upon the plaintiff the burden of establishing positively that the rent was not payable when there was harvest. It is assumed that normally the rent could become payable immediately after the harvest and it is for the person who sets up a different date for payment to prove it. Inasmuch as the plaintiff has stated that the rent fell due on the last day of the agricultural year or on the last day of the period of tenancy, the latter being more favourable to the plaintiff, the learned Judge held that it is for him to establish that the rent was payable on the last date as contended for. In the absence of the contract of tenancy to prove the related terms the Courts below held that the claim is barred by limitation. But the plaintiff is assisted here by the decision of the Judicial Committee in Rangayya Appa Rao v/s. Bobba Sriramulu , above cited where while discussing the starting point for the commencement of the limitation in a suit for arrears of rent, their Lordships observed (at page 150):