MAHESHWARI PRASAD VARMA Vs. DULHIN MANRAJO KUER

JUDGEMENT

(1.) This is a second appeal from the judgment and decree of the District Judge of Gaya affirming the judgment and decree of a Subordinate Judge in a suit for rent which was instituted by the plaintiff-respondent against the appellant under the following circumstances: The plaintiff holds 16 annas mukarrari tenure of village Sohaipur having purchased it by a sale deed dated 12 May 1930. Prior to her purchase there was a dispute regarding the possession of the property between her vendor and certain other persons and the property was attached under Section 146, Criminal P.C., and placed under the management of a receiver in 1927. After her purchase she brought a suit in 1932, to establish her title but in the mean times the receiver had given to the defendant a lease of the village for the purpose of collecting rent for a term of seven years commencing from the year 1340 fasli at an annual rental of Rs. 1618. Subsequently, the plaintiff f succeeded in her suit and her title to the property was declared. The defendant, however, remained in possession of the property as a lessee till 18 December 1934, when the plaintiff got possession. On 12 September 1938,. the plaintiff brought the present suit for recovery of arrears of rent for three kists of the year 1340, the whole of the year 1341 and two kists of the year 1342, the total claim being for Rs. 2423-12-0.

(2.) Both the Courts below have decreed the suit holding that it is governed by the six years rule of limitation prescribed in Art. 116, Limitation Act, and the only point raised in g, second appeal is that the suit is governed not by Art. 116, Limitation Act, but by Art. 2 of Schedule 3, Bihar Tenancy Act, and the period of limitation is therefore not six years but three years. The appeal was originally heard by a Division Bench consisting of Rowland and Chatterji JJ. but they have referred it to a Pull Bench and formulated the following, questions of law upon which in their opinion the decision of the Full Bench is necessary: (1) Whether a thica lease of a village, for the purpose of collecting rents, creates a tenancy within the purview of the Bihar Tenancy Act as being a lease of agricultural land or is excluded from the scope of the Act as being not a lease for agricultural purposes, (2) Whether a suit for arrears of rent due on such a lease is governed by Art. 2 of Schedule 3, Bihar Tenancy Act. (3) When the lease was granted by a receiver appointed by the Court under Section 146, Criminal P.C., whether the position of the lessee, so long as he remains in possession, is different from that of a lessee from the true owner; and if so, what is the result.

(3.) Mr. Mahabir Prasad, who appears for the appellant contends that by virtue of the thika. lease the position of the defendant was that of a tenure-holder and therefore the suit is governed by the rule of limitation laid down in Schedule 3, Bihar Tenancy Act; and in support of his contention he relies upon Sri Ram Chandra Naik V/s. Ajodhya Singh A.I.R. 1935 Pat. 508. Hiralal Singh V/s. Rinkauri Singh ( 34) 21 A.I.R. 1934 Pat. 75 and Mahmood Hasan Khan V/s. Muhammad Akhtar Hossain Khan A.I.R. 1942 Pat. 474. In Sri Ram Chandra Naik V/s. Ajodhya Singh ( 35) 22 A.I.R. 1935 Pat. 508 it was held that the right to hold land for the purpose of collecting agricultural rents, whether or not it constitutes a tenancy for agricultural purposes within the meaning of Section 117, T.P. Act, does constitute a tenure within the Bengal Tenancy Act and the fact that the ]ease covered an entire mouza and required the lessees "by their good treatment and by making settlement to cultivate the party and dili lands and further gave them the right to plant trees" was sufficient to bring the lease within the Bengal Tenancy Act and therefore it was excluded from Ch. 5, T.P. Act, 1882. In Hiralal Singh V/s. Rinkauri Singh A.I.R. 1934 Pat. 75 it was held that the thika lease ordinarily came within the purview of the Benal Tenancy Act and Section 68 of the Act empowered the Court to award damages in a suit for rent brought by the lessor against the lessee. In Mahmood Hasan Khan V/s. Muhammad Akhtar Hossain Khan A.I.R. 1942 Pat. 474 the Court had to deal with a case where the right to collect rent in regard to certain agricultural lands was given for a fixed, term and the kabuliyat further provided that the lessee was authorized to cultivate the bakasht lands and appropriate its produce to himself. The lessee who entered into possession of the land did not pay rent and held over and the lessor thereupon instituted a suit for: thika rent for 1339 to 1344 Fasli, the period of holding over being included. On these facts Rowland J., held that though in fact the lease was a lease contemplating agricultural operation by the lessee himself the predominant object of the lease was the collection of the rent and that it was a tenure and the defendant lessee during the currency of the "lease was a tenure-holder within the meaning of the Bengal Tenancy Act. Rowland further held that Art. 2 of Schedule 3, Bihar Tenancy Act, applied and the claim for rent for three years was barred by time. Chatterji J., agreed with this view and in doing so pointed out that the Subordinate Judge had in appeal found that the lease under which the defendant had taken possession of the property was an agricultural lease and in view of the fact that there was a clear provision therein that the lessee would be entitled to cultivate the land it was difficult to hold that the finding of the Subordinate Judge was wrong.