Ghosita Goria vs Durga Pershad And Anr. on 5 February, 1885

Calcutta High Court
Ghosita Goria vs Durga Pershad And Anr. on 5 February, 1885
Equivalent citations: (1885) ILR 11 Cal 284
Author: M A Trevelyan
Bench: Mitter, Trevelyan


Mitter and Trevelyan, JJ.

1. The ground of appeal that has been mainly argued before us is that the plaintiff’s suit being for abatement of rent, it is barred by limitation, inasmuch as it was not brought within one year from the date of the cause of action.

2. It is true that the Courts below have tried this suit as one for abatement of rent under Section 19 of Bengal Act III of 1869, but looking to the plaint and the facts admitted by both parties, it appears to us that it is not a suit for abatement under Section 19 of Bengal Act VIII of 1869. The admitted facts are these: The plaintiff held a jote under the defendants and his co-sharers who were jointly in possession of an estate paying revenue to Government. A butwara was effected of this estate in 1877; and, out of the plaintiff’s jote lands, a plot of land, measured by the Ameen, fifteen cottahs, fell to the putti or divided share of the defendants. The plaint further alleges that the rate of rent at which he held the jote while the estate was joint was Rs. 4 per biggah. On partition the defendants demanded and enforced payment of Rs. 5 on account of the fifteen cottahs’ plot that fell to the defendants’ putti.

3. The plaintiff brought this suit, according to the plaint, under Section 19 of Bengal Act VIII of 1869 for abatement of rent, but from the facts stated, and which are not disputed, it is quite clear that this is not a suit for abatement under Section 19. The plaintiff does not say that there has been any diminution in his holding; but what he says is, that by its division into several puttis or shares it has become necessary to apportion the rent payable to the different landlords who obtained distinct puttis under the partition; and that on a proper adjustment of the rent, he would not be liable to pay the rent which the defendants have realized from him. This is not, therefore, a suit for abatement of rent, but a suit for apportionment of rent and for a declaration that after hutivara, the share of the rent which the plaintiff is liable to pay to the defendants is as it is stated in the plaint.

4. The cause of action of this suit arose in the year 1877, and the suit was brought in September 1881, that is, within six years. There is no special provision in the Limitation Act regarding a suit of this description, and therefore six years is the period of limitation within which the plaintiff would be entitled to bring a suit of this description. That being so, we are of opinion that the present suit is not barred by limitation.

5. Two other points have been raised and argued before us which mainly depend upon this, viz., whether the local biggah was smaller than the ordinary biggah. Upon this point the lower Courts have come to the conclusion that the defendants have not made out their contention. In second appeal we cannot interfere with this finding of fact. The appeal is dismissed with costs.

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