OFFICIAL TRUSTEE OF BENGAL, RECEIVER TO ESTATE OF RAI ISHAN CHANDRA MITRA BAHADUR Vs. BIJOY CHAND MAHATAB, MAHARAJADHIRAJ OF BURDWAN

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of arrears of rent of a patni. This patni was held by late Rai Iswar Chandra Mitra Bahadur under the Maharajadhiraj of Burdwan at an annual rent of Rs. 13,008. The Official Trustee of Bengal is the receiver to the estate of the said Rai Bahadur. The patni in suit was sold under the Bengal Patni Taluk Regulation (Bengal Regulation, 8 of 1819) for arrears of 1339 B.S. (1932-33) on 1 Jaista 1340 B.S. (15 May 1933) and was purchased by one Haridas Roy. On 14 May 1934 the Patni-dars instituted a suit in the Court of the Subordinate Judge at Hooghly (Title Suit No. 41 of 1934/60 of 1935) for setting aside this sale. On 1 Jaista 1345 B.S. (16 May 1936) the patni was again sold for arrears of 1342 B.S. and was purchased by Sm. Kamala Devi for Rs. 9930-14-6. The Subordinate Judge of Hooghly by his judgment in Title Suit No. 60 of 1935 dated 1 June 1936 set aside the sale of the patni at which Haridas Roy purchased the patni and directed the Maharajadhiraj to pay Rs. 61,405-10-9 as compensation to the auction purchaser, Haridas. On 9 September 1936 the Official Trustee of Bengal brought a suit in the Court of the Subordinate Judge at Hooghly (Title Suit No. 49 of 1936) for a declaration that the sale under the Patni Regulation held on 1 Jaista 1345 was illegal, null and void, stating inter alia that he obtained possession of the patni mahal immediately after the pro-nouncement of the judgment in Title Suit No. 60 of 1935 and that he had since then been in undisturbed possession of the patni. This suit, however, was dismissed for nonpayment of court-fees. An appeal against the judgment in Title suit No. 60 of 1935 (F.A. 13 of 1937) was filed by the Maharajadhiraj on 9 November 1936. In this appeal the zemindar questioned only the amount of damages awarded to the auction purchaser Haridas Roy.

(2.) On 9 August 1937 (24 Sravan 1344) the Maharajadhiraj of Burdwan instituted the present suit for recovery of (1) balance of arrears of rent and cess from Baisakh to Aswin 1339 B.S.; (2) arrears of rent and cess from Kartick to Chaitra 1339 B.S.; (3) arrears of rent and cess for the year 1840 and 1341 and (4) balance of arrears of rent and cess for 1342 B.S. in respect of the patni with interest at 12 1/2 per cent. per annum against the Official Trustee of Bengal and the heirs of Rai Bahadur Isan Chandra Mitra on the basis of a kabuliat dated 19th Aswin 1251 (23 September 1844). The Official Trustee of Bengal filed written statement on 23 September 1937. His defences, so far as they are material for the purposes of the present appeal, are these: (1) that the plaintiff's suit is barred by limitation and (2) that the interest claimed by the plaintiff is illegal and excessive and that the plaintiff is not entitled to get a decree for interest. On 19 November 1937, the Official Trustee of Bengal instituted a suit against Haridas Eoy for recovery of mesne profits and damages for all rents, landlord's fee and other profits realised by Haridas Roy from the patni mahal from 30 Aswin 1340 B.S. to 1 Aswar 1343 B.S. Thereafter the Subordinate Judge heard the present rent suit and decreed it on 25 February 1938. The Official Trustee of Bengal presented this appeal on 11th June 1938. Three points were urged by Mr. Das on behalf of the appellant in this appeal : (1) that the claim for arrears of rent for the year 1339 B.S. is barred by limitation, (2) that interest on the arrears is payable at 6 per. cent. per annum from 1 June 1936.

(3.) As regards the first point the contention of Mr. Das is two-fold, viz., (a) that the suit is governed by Art. 115, Limitation Act, and (b) that in any view of the case, it is governed by Art. 110, Limitation Act. Art. 115, Limitation Act, provides for a suit for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for. Plaintiff's suit in the present case is based on a kabuliat and the claim is for arrears of rent, which is specially provided for in Art. 110, Limitation Act. Art. 115 is therefore not attracted to the facts of the present case. Dr. Basak appearing on behalf of the respondents has conceded that the suit is governed by Art. 110, Limitation Act. That article lays down that suits for arrears of rent are to be instituted within three years from the time when the arrears become due. The question is when did the arrear of 1339 B.S. become due ? According to the terms of the kabuliat, by which the patni was created, the rent was payable by monthly instalments. Therefore the rent for each month becomes due on the 1 date of the succeeding month. It has been already stated that the patni was sold on 15 May 1933 for arrears of rent for the year 1339 B.S. The claim for arrears of rent for the year 1339 B.S. was therefore satisfied on 15 May 1933. This sale however was set aside on 1 June 1936. It has also been stated before that the appellant obtained possession of the patni immediately after the sale was set aside on 1 June 1936. The position therefore is that after the setting aside of the sale the patnidar was restored to possession. He therefore "took back the patni subject to the obligation to pay the rent and that the particular arrears of rent claimed in this action must be taken to have become due in the year in which that restoration to possession took place": Ranee Surno Moyee V/s. Shooshee Mookhee Burmonia (1867-69) 12 M.I.A. 244 at p. 253. In other words, the patnidar having recovered the patni with a right to get mesne profits from the auction purchaser at the patni sale it is but equitable that he should pay the amount of rent which was in arrears. The amount of rent did not accrue until the sale of the patni had been set aside and until that time the statute should not run : Hurro Pershad v. Gopal Das Dutt ( 83) 9 Cal. 255 at p. 85. The present suit is within three years from the date when the patni sale was set aside and the patnidar was restored to possession. Plaintiff's claim for arrears of rent of 1339 B.S. is therefore not barred by limitation. The first ground therefore fails.