Wilson and Beverley, JJ.
1. The question in this appeal is whether the claim in suit, with regard to certain arrears of rent, is barred by limitation or not.
2. The particular years, the rent of which is in question in this appeal, are the years 1282, 1283 and 1284. The rule of limitation applicable to the matter is contained in Section 29 of the Act. It provides that–suits for the recovery of arrears of rent shall be instituted within three years, from the last day of the Bengal year, or from the last day of the month of Jeyt of the Fusli or Willayuttee year, in which the arrear claimed shall have become due.” * * * There is no doubt that the rent of these particular years accrued much more than three years before the suit. Therefore, prima facie, the suit is barred. But the lower Courts have held that the particular circumstances of the case take the rent of those years out of the rule of limitation. The lower Appellate Court puts the matter thus: “No doubt, the claim would be barred under the ordinary rule of limitation contained in Section 29 of the Rent Act; but under peculiar circumstances, this rule has been held not to apply, and it appears tome that in the present case the plaintiff’s claim should not be held as barred. It does not appear that the plaintiff’s suit to set aside the putni, although it was eventually unsuccessful, was otherwise than bona fide, and it seems that they could not have sued the defendant (appellant) for arrears of rent between the date of the first decree and the date of the judgment reversing it, viz., between the 16th Pous 1285 and the 6th Srabun 1288.”
3. The matter referred to in that judgment is, that in the year 1285, the plaintiff brought a suit against the defendant to have the putni tennure, which he held, declared invalid as against the plaintiffs on the ground that it was granted by a lady having a limited interest. In that suit they obtained a decree in the first Court, but the decree was reversed on appeal. The question is whether that circumstance protects the present claim from the operation of the law of limitation. It appears to us on the authorities in the matter that it does not. It is not necessary to refer to more than one authority on the subject, the case of Hurro Pershad Roy v. Gopal Doss Dutt I.L.R. 9 Cal. 255 before the Privy Council. The facts in that case were that the plaintiff sued for rent which was prima facie barred. He relied to meet the plea of limitation upon the fact that he had brought some suit unsuccessfully to oust the defendants from their holding, and that during the period occupied by that suit he was precluded from suing for rent. And the Privy Council held this: “The appellant contends that the Statute did not run against his claim for rent after the year 1874, when he commenced these suits; and for that proposition he relies solely on the authority of the case of Rani Surnomoyee v. Shoshi Mukhi Burmonia 2 B.L.R. P.C. 10. Both Courts in India have decided against the appellant upon the ground that the Statute applies, and that his case does not come within the exception to the operation of the Statute established in the case of Rami Surnomoyee–an exception rather apparent than real. “Then, that case which has been, relied on in the Court below is thus explained:
The effect of that case may be very shortly stated. The zamindar brought a certain putni taluk to sale, and sold it to a purchaser who was put in possession of it, and out of the purchase-money the arrears of rent were paid. Subsequently, the sale was set aside for irregularity; the zamindar had to refund the purchase-money received by her, and the ptttnidar who succeeded in setting it aside obtained also the mesne profits for the time during which he was ousted. Under those circumstances, this Committee, whose judgment was delivered by Sir James Colville, observe: ‘It is clear that until the sale had been finally set aside she’–that is, the plaintiff–‘was in the position of a person whose claim had been satisfied, and that her suit might have been successfully met by a plea to that effect.’ In other words, the effect of the judgment of this Board is that under the peculiar circumstances the putnidar having recovered possession, together with mesne profits, it was equitable that he should pay the amount of rent which was in arrears; but that amount of rent did not accrue until the sale of the putni had been set aside, and, therefore, until that time the Statute could not run.
4. It is explained, therefore, that the case of Rani Surnomoyee rested upon this, that under the circumstances of that case a new ground of claim for rent had arisen when the sale was set aside by the Court.
5. There is nothing of that kind in this case. The plaintiff’s cause of action accrued long before the time of the former case. There was no period during which the tenancy ceased to exist. We cannot extend the time of suit on the ground that he brought a suit improperly, on the allegation that the relationship of landlord and tenant between him and the tenant did not exist.
6. The result is that the decree of the Court below will be varied to this extent, that the rent for 1282, 1283, and 1284 will be disallowed.
7. The appellant will have his costs in this Court, and he will also get his costs in the lower Courts in proportion to the amount dis allowed to the plaintiff.