MAHARAJA RANJIT SINGH Vs. MAHARAJ BAHADUR SINGH

JUDGEMENT

(1.) THIS is an appeal against seven decrees of the High Court of Calcutta dated March 5, 1913. These decrees were made in seven suits instituted by the respondent on September 10 and 20, 1904, against the appellant and others claiming to recover possession and settlement of certain chaukidari chakaran lands in villages of which the appellant is the zamindar. It is unnecessary to deal with the history and vicissitudes of the litigation, as the only question that now arises for determination is whether the suits were barred by the Indian Limitation Act, 1877. That statute, as is well known, fixed different periods of limitation within which suits of different characters should be brought. The appellant contends that Article 113 of Sched. II. of that statute regulates the rights of the parties in the present case, while the respondent asserts that the period is fixed by Article 144 of the same schedule. By the terms of the schedule, Article 113 is stated to apply to a suit for specific performance of a contract, the period of limitation is fixed at three years, and the time from which the period begins to run is stated to be the date fixed for the performance or, if no such date is fixed, the date when the plaintiff has notice that performance is refused. Article 144, on the other hand, relates to a suit for possession of immovable property or any interest therein not thereby otherwise specially provided for; the period is twelve years, and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. If Article 113 applies the appellant is entitled to succeed. But it is admitted that he must fail if Article 144 prescribes the true period.

(2.) THE circumstances out of which the action arose can be briefly stated. The respondent is the patnidar of half and darpatnidar of the other half of the village of Gopalpur, and is patnidar of six other villages, all of the said villages being within the zamindari of the appellant. Some of the lands in these villages included in the patnis and the darpatnis were originally held as chaukidari chakaran lands, but in June, 1898, these lands were all resumed by the Collector under the Bengal Act VI. of 1870, and then transferred to the appellant. It is unnecessary to state the history of these lands, the circumstances attaching to their tenure, and the respective rights of the parties when they were resumed by the Collector, for all these matters have been fully dealt with in a judgment of this Board in the case of Ranjit Singh v. Kali Dasi Debi. L.R. 44 I.A. 117 It was there decided that upon such resumption and transfer to the zamindar, as is provided by the Bengal Act VI. of 1870, the patnidar or the darpatnidar is entitled under Section 51 to possession of the chaukidari chakaran lands. That right depended upon the interpretation given by the Board to Section 51 of Act VI. of 1870. This section operates to transfer the land to the zamindar, "subject to all contracts theretofore made in respect of, under, or by virtue of which any person other than the zamindar may have any right to any land, or portion of his estate or tenure in the place in which such land may be situate."

(3.) THERE is, therefore, no longer any question as to the right of the respondent to the lands, but the appellants contention is that as the rights of the patnidar are reserved under the words referred to they must be assumed to be contractual rights, that consequently a suit to enforce those rights must be a suit for specific performance, and that the date from which the statute begins to run must be the date of the grants to the zamindar. Their Lordships are unable to accede to that contention. It does not follow that because the rights originally arose by virtue of a grant declared to be a contract within the meaning of Section 51 they are therefore rights, contractual in the sense that the contract by its terms creates and regulates the personal obligations and duties of the grantor in the circumstances that have arisen. At the time when the patni grants were made the resumption of the chaukidari chakaran lands was not even contemplated, and the grant necessarily contains no reference whatever to the circumstances that would arise and the relationships that would exist in the event of the Government resuming possession. Upon resumption of such possession the rights of the patnidar were those conferred on him by the ate and interest created by the patni leases, and it was these rights that were kept alive by Section 51 of Act VI. of 1870 of the Bengal Council. It is only necessary to examine the words which prescribe the date from which the period begins to run in Article 113 of Sched. II. of the Limitation Act to show the difficulties in the way of any contrary contention. This date, as has already been pointed out, is either the date fixed for performance or the date when the plaintiff has notice that performance has been refused, but no date whatever has been fixed for performance in such a case as the present, either by the original grant or by the terms of the statute, nor has there been any refusal to perform a contract, for there was no unexecuted contract which had to be performed. A suit for specific performance is essentially a suit for enforcing a stipulated obligation relating to property. The word "contract" itself primarily means a transaction which creates personal obligations, but it may, though less exactly, refer to transactions which create real rights. It is in this latter sense that the word was used in Section 51, and the rights thereby reserved to the patnidars. comprehensively included in the word "contracts," are real rights, the enforcement of which is secured not by a suit for specific performance, but by a suit for possession, and it is this which, in their Lordships' opinion, is the character of the suits in the present CASE.