PROFULLA CHANDRA BASU Vs. KSHETRA LAL SINHA ROY

JUDGEMENT

(1.) These three appeals arise out of three suits in which the plaintiffs sought for a declaration that certain lands were held by them rent free under the defendant as the defendant landlord had wrongly got these lands recorded in the Record-of-Rights as liable to pay rent and then fraudulently got rent assessed for them under Section 105, Ben. Ten. Act. The plaintiffs also asked for confirmation of their possession and also for an injunction restraining the defendant from executing any decree for rent which he might obtain in certain rent suits which he had brought against them.

(2.) The first Court decreed the suits holding that the plaintiffs were entitled to a declaration that the lands were lakhiraj lands. That Court also confirmed their possession and issued permanent injunction on defendant 1 restraining him from realizing in execution the amounts of the decrees which he had obtained for rents for these lands. The defendant appealed to the District Court. The learned Subordinate Judge held that the suits were barred by limitation and further that they were barred by Section 109, Ben. Ten. Act. With regard to the question of limitation he held that the suits were governed by Art. 120, Lim. Act, which provides a period of six years. He "held that time ran against the plaintiffs from the date of the final publication of the Record-of-Eights and hence the suits were barred by limitation. He further found that 8. 109, Ben. Ten. Act, was a bar to the present suits. The defendant had made an application under Section 105, Ben. Ten. Act, for a declaration that these lands were not rentfree lands but rent paying lands and to have a fair rent assessed upon them. These proceedings were decided ex part against the present plaintiffs.

(3.) The learned Subordinate Judge held that these questions were resjudicata and the present suits were barred. As regards the question of limitation the first question decided by the learned Subordinate Judge was whether Art. 120 or Art. 142 or 144, Lim. Act applied to the present cases. In other words whether 6 years or 12 years rule of limitation applied to the cases. The plaintiffs had added to their declaratory suits prayers for confirmation of possession and an injunction that the defendants might be restrained from realizing rents in execution of any decrees that he might obtain in certain rent suits. With regard to the prayer for confirmation of possession the learned Subordinate Judge has held, and I agree with him, that there was no cause of action which would justify the plaintiffs in asking for confirmation of their possession, that no attempt has been made by the landlord defendant to dispossess the plaintiffs or in any way to disturb their possession. Mere bringing of suits for rent against; a party, is not an attempt to disturb his possession of the property in question. I agree therefore with the learned Subordinate Judge that the prayer for confirmation of possession is entirely unnecessary. Therefore on that account the plaintiffs cannot have the period of limitation for 12 years. The next question is whether the application for an injunction was necessary or not or indeed whether it was a prayer which the plaintiffs could ask for. What they asked for, as far as we CM see, was an injunction restraining the defendant from realizing rents in execution of any decrees that he might obtain. I do not think that it was open to the Court to grant any such injunction. The injunction which they asked for was an injunction restraining the defendant from executing any rent decrees which he might or might not obtain. He had not obtained any decree for rent. The prayer for the injunction was clearly premature and it could not be asked for or granted in the present suits. It is, therefore, clear that the period of limitation applicable to the present suits is six years as held by the learned Subordinate Judge.