DINANATH KAR Vs. CHOUDHURI JITENDRA NANDAN DAS MOHAPATRA

JUDGEMENT

(1.) The suit in which this appeal has arisen was instituted by the plaintiffs-appellants in this Court for a declaration that there is a custom of remission of rent of Jal (paddy) land of occupancy raiyats on account of entire or proportionate destruction of crops by drought or inundation. The suit was one contemplated by Order 1, Rule 8, Civil P. C, brought by certain occupancy raiyats of estates Nos. 10, 14 and 60 of the Midnapore Collectorate in Mouza Baruipur. The Court of first instance passed a decree in favour of the plaintiffs granting the relief prayed for in the suit in this form: that the plaintiffs are entitled to and will get a declaration that the occupancy raiyats who hold the holdings in estates Nos. 10, 14 and 60 within Mouza Baruipur directly under the defendants and pay them rent in cash are entitled to get proportionate deduction of rent for their paddy lands within such holdings in years of Haja and Sukha, that is, in proportion to the quantity of paddy destroyed in those lands by such Haja or Sukha.

(2.) The Court of appeal below reversed the decision of the trial Court on the ground that the relief granted to the plaintiffs in the suit could not be granted to them under Section 42, Specific Belief Act, and on the further ground that the claim in suit was barred by limitation. The learned District Judge in the Court of appeal below did not decide the question as to the existence of custom set up by the plaintiffs in the suit. It is to be noticed that at the stage when the appeal before the lower appellate Court was pending, the defendants landlords of estates Nos. 10 and 60 settled their dispute so far as the present litigation was concerned, with the tenants, and the decision of the appeal was in favour of the landlords of estate No. 14 only, who are in the position of co-sharer landlords; the lands of the estates Nos. 14 and 60 being Ijmali between the proprietors in equal shares.

(3.) The District Judge in the lower appellate Court entered into an elaborate discussion of the question as to whether there was any distinction between "custom" and "rights based on custom" and came to the conclusion that there was a substantial difference between the two. The result of the conclusion so arrived at by the Judge was that the plaintiffs who prayed for a declaration as to the existence of a custom, were held not entitled to get a "declaration that the villagers had the right based on custom. The Judge has in one part of his judgment observed that what the plaintiffs really meant was to ask for a declaration that the villagers had the right based on custom. It has only to be mentioned on this part of the case, that pleadings in the Moffussil in this country have never been so strictly construed by the Courts in India or by their Lordships of the Judicial Committee of the Privy Council, as to deny a relief to a! party to which he may be held to be entitled for the reason that there was some defect or other in the wording of the prayer made in a plaint. The learned advocate appearing for the defendants-respondents in this appeal has not attached any importance to this part of the case and to the District Judge's discussion on the distinction to be drawn between custom and rights based on custom, in the case before us; and we do not consider it necessary to give any serious consideration to the same. In our judgment the plaintiffs were entitled to get the declaration granted to them by the Court of first instance, if the existence of the custom were established, and if there was no effective bar of limitation to the declaration being granted to them.