AKBAR SARCAR Vs. RAMESH CHANDRA MOITRA

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for assessment and recovery of rent upon declaration that the disputed land is rent-paying. The Courts below have found in favour of the plaintiff, and the substantial question now in controversy is, whether the claim for assessment is or is not barred by limitation. The defendants have urged a further point of subordinate importance, namely, that rent should not be decreed for a period antecedent to the date of assessment.

(2.) On the 18 December 1844 one Karim Sarcar, now represented by the defendants- appellants, executed a kabuliyat in favour of Mritunjoy Moitra, the father of the plaintiff- respondent. As the determination of the rights and obligations of the parties depends upon the terms of the contract between them, the relevant portion of this document is set out here: I, Karim Sircar, son of Fozdar Sircar, of Haldi, Thana Tanar, District Rajshahye, executed this kabuliyat in the year 1251 to the effect following: That you have an eight-anna Zemindari interest in Kismat Haldi the Mahal No. 1210, borne on the Touzi of the Collectorate, within Pargana Chinashour which you are in ownership and possession of without any objection of others. Two plots of land described in schedule below appertaining to your distinct Saham of the aforesaid eight-annas of the aforesaid Touzi and measuring about 4 bighas, are now lying palit and covered with jungle. As it requires great labour and expense of money to render the lands of the aforesaid two dags fit for cultivation by clearing the jungle thereof and filling up khals and khandars you notified to make the said laud hassil by granting a settlement thereof for a term of 10 years, free of rent, that is to say, keeping the rent in abeyance. I, accordingly, having agreed to take the said land, execute this kabuliyat and agree that I shall myself bear the expenses that will be required to render the lands of the two dags mentioned in schedule below fit for cultivation by clearing the jungle thereof and filling up the khals and khandars, and to recoup myself for the said expenses, I shall enjoy the profits of the said lands and hold the same as lakheraj for 10 years from the beginning of 1252 up to the end of 1261 that is, up to (torn) you shall not get any rent (torn) but on the expiry I shall be bound to pay the rent that may be fixed upon a measurement and according to the rate and the area of land whether more or less. If I, through any neglect on my part, fail to re-claim the said lands within the said term or if I partly re-claimed the same and leave partly unreclaimed, then you shall, on the expiry of the term, bring the said land into your khas possession, and I shall be bound to pay the costs that will be incurred to bring the said land under cultivation, as also damages. If I do not pay the same amicably, you shall realise the same with costs by bringing a suit in proper Court. I shall keep intact the limits, etc., of the land. "If any one encroaches upon the boundaries through any neglect on my part, then I shall make good the loss that you may sustain to bring the same in your possession, together with interest thereon. If any measurement of the mahal or assessment of rent thereof is made, then I shall be bound to pay the rent that may be fixed at any time according to the rate. To the above effect I, having received a pattah as a counterpart of this kabuliyat, do execute this kabuliyat. Finis. The 5 Pous 1251 B.S.

(3.) There is no room for doubt that the land leased out was mal land, which was intended to be re-claimed and brought under cultivation by the lessee. No rent was to be paid during the first ten years, inasmuch as the lessee would have to undergo great labour and incur heavy expenditure. On the termination of ten years, that is, with effect from 13 April 1855, the lessee would be liable to pay such rent as might be fixed upon a measurement and according to the rate and the area of the land. No rent was, however, ever assessed, and in the course of Survey and Settlement proceedings, which took place shortly before this suit, the defendants asserted before the Revenue Authorities that the land was held by them as perpetually rent-free. The plaintiff thereupon instituted the present suit on the 3 October 1917 for declaration that the land was rent paying, for assessment of rent at the rate of Rs. 6. a bigha, or such other rate as might be deamed fair and equitable by the Court, and for recovery of arrears, at the assessed rate with effect from the 14 April 1914. The defendants resisted the claim on a variety of grounds which need not now be re-capitulated. They were all overruled by the Primary Court, and rent was decreed at the rate claimed. This decree has been affirmed by the Subordinate Judge on appeal. On the present appeal, two points have been urged, namely, firstly, that the suit was barred by limitation under Art. 130 of the Schedule to the Indian Limitation Act; and, secondly, that rent should not have been decreed for a period antecedent to the assessment.