JITENDRA MOHAN DUTT Vs. ABDUL OJHA

JUDGEMENT

(1.) This is an appeal by the plaintiff and it arises out of a suit for rent for five years and a half. The controversy is whether a portion of the claim is barred by the special rule of limitation provided by Art. 2 of the Third Schedule to the Bengal Tenancy Act.

(2.) The plaintiff's case was that the land in respect of which rent was claimed was a homestead land which was taken from him by the defendants predecessors by executing a registered kabuliyat and that the incidents of the tenancy were governed by the Transfer of Property Act. The defendants case was that the tenancy was governed by the provisions of the Bengal Tenancy Act and that, therefore, the portion of the claim exceeding the rent for four years was barred by limitation.

(3.) The trial Court held that the land in question was not taken for agricultural or horticultural purposes. It was held that the defendants were not raiyats so as to bring into operation the provisions of Section 182 of the Bengal Tenancy Act. It was further held that the question whether the tenancy was governed by the Transfer of Property Act or by the Bengal Tenancy Act was res judicata; and that question of res judicata arose out of a suit that was instituted by the plaintiff against the defendants in the year 1918. On these grounds, the plaintiff was allowed a decree in full by the Court of first instance for the amount claimed by him.