HUMAYAUN RAZA CHOUDHURY Vs. TARINI CHARAN TEWARI

JUDGEMENT

(1.) THIS appeal by the plaintiffs arises out of a suit for the cash rent of a patni tenure for four years. The claim for one year's rent has been dismissed as barred by three years limitation and that decision has been affirmed on appeal. It is contended that the suit being for rent on a registered contract, the period of limitation under Art. 116, Limitation Act, is six years and so the suit is within time. It is admitted that Limitation is to be governed by the Limitation Act and not by any special period laid down in any special or local law. The Subordinate Judge in dealing with this issue observed: The patni tenure was created by a registered patta dated 19 Falgun 1304 B.S., and the patnidar executed the kabuliyat on the same date (Ex. 17) agreeing to pay patni rent according to the kists mentioned therein and as such the period of limitation is three years from the defaulting kist and the amount claimed for 1341 B.S. is clearly time- barred.

(2.) THE learned Subordinate Judge was in ignorance of the principle laid down in Vythilinga Pillai V/s. THEtohana Murti Pillai3 Mad. 76 in Umesh Chander Mundul v. Adarmoni Dasi 5 Cal. 221 and Lalehand Nanchand V/s. Narayan Hari 37 Bom. 656 and approved by the Privy Council as of general application in Trioomdaa Cooverji Bhoja V/s. Gopinath Jiu Thakur A.I.R. 1916 P.C. 182. A suit to recover rent due on a registered patni lese is governed by Art. 116, Limitation Act, and the period of limitation is six years unless some special or local law has laid down a different period. In the District Judge's Court the defendants being obviously unable to defend the Subordinate Judge's judgment on the grounds on which it was based took a new point apparently not raised in the Court below and contended that the suit was not a suit for rent due under a registered agreement but for rent fixed by the khewat. THE kabuliyat had stipulated for an annual rental of Rs. 291-8-1 payable in four kists, whereas at the time of the preparation of the record of rights Rs. 3-2-4 out of this amount was held to be irrecoverable as being an abawab known as dak cess. In the result the rent entered in the khewat is Rs. 288-5-9; but the khewat is not a document creating title though it is good evidence to show to what extent the agreement in the kabuliyat is valid and to what extent it is not enforceable. I have no doubt that this suit is based on the kabuliyat and the covenants therein contained to the extent that they were found by the settlement authorities to be enforceable. THE appeal must be allowed, the decrees of the Courts below modified and the plaintiffs given a decree for the amount claimed for 1841 B.S. THE plaintiffs shall get costs of the appeal. THE amount will carry interest calculated in the same manner as on the amounts decreed by the Courts below.