KEDAR NATH MOYRA Vs. GOLLAM HOSSAIN MOLLAH

JUDGEMENT

(1.) The plaintiff Motiullah Mollah, whose legal representatives are the respondents in this appeal, sued the defendant-appellant for arrears of rent and cesses due from Magh 1334 to Chait 1337 at the rate of Rs. 73-2 per year. He also claimed additional rent for excess area for the same period. The suit was based on a registered lease, dated Falgoon 18, 1309, by winch 30 bighas of land was let out at the rate of Rs. 27 per bigha. By the terms of the lease the tenant has to pay additional rent for lands in excess of 30 bighas at the rate of Rs. 2-7 per bigha. At the time of cadastral survey under Chapter X of the Bengal Tenancy Act the area in the possession of the defendant was found to be 35 bighas 19 eottahs 8 chittaks. The plaintiff accordingly claimed as additional rent the sum of Rs. 13-15-5-1/2 gandas for the 5 bighas 19 cottahs 8 chittaks of land of which the defendant was in possession in excess of the 30 bighas of land menticned in the said lease.

(2.) The defence that he was not in possession of the area mentioned in the Record of Rights failed, and the learned Munsif by his judgment dated August 28, 1931, held that the plaintiff was entitled to Rs. 13-15-3 as additional rent. The plaintiffs claim for arrears from Magh 1331 to Chait 1337 was accordingly decreed at the rate of Rs. 87-1-3 pies per year with cesses and damages. The decree was drawn up and signed on September 12, 1931. In the decree so drawn up the total amount decreed to the plaintiff was correctly stated and was in accordance with the judgment, but a few clerical mistakes were committed. In reciting in that portion of the decree, which recited the claim of the plaintiff, a mistake was in the original rent of the tenancy, the rate of rent being stated to be Rs. 18-4-6 instead of Rs. 73-2 per year. In the recital of the claim also it was stated that arrears were claimed from 1334 to Chait of 1337, and not from Magh 1334 to Chait 1337. In the decretal portion it was stated that the plaintiff was entitled to additional rent, but the amount thereof was not mentioned; but the total amount which the defendant was directed to pay to the plaintiff was correctly stated.

(3.) The Civil Court closed for the Puja vacation on October 11, 1931, and re-opened on November 12, 1931. The last date for filing the appeal against the said decree would have been the re-opening date that is the November 12, 1931. The defendant did not file an appeal on that date. On November 22, 1931, the plaintiff, however, made an application for correction of the aforesaid clerical errors which did not at all affect the operative portion of the decrees. The said application was allowed on January 15, 1932. The amendment of the decree did not in any way alter any part of the operative or material portion of the decree. On February 13, 1932, the defendant filed ah appeal to the learned District Judge. That appeal has been dismissed by the learned Subordinate Judge, he holding that, it was filed out of time, and no case for extension of time under Section 5 of the Limitation Act had been made out. The defendant has accordingly preferred this appeal.