Watson And Co. vs Dhonendra Chunder Mookerjee on 12 March, 1877

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Calcutta High Court
Watson And Co. vs Dhonendra Chunder Mookerjee on 12 March, 1877
Equivalent citations: (1878) ILR 3 Cal 7
Author: Markby
Bench: Markby, Mitter


Markby, J.

1. This was a suit brought by the plaintiff on behalf of the zemindars to recover arrears of rent due in respect of certain estates in the Zilla of Midnapore, held by the defendants as patnidars. The rents claimed were those which fell due between Bysack 1275 and Aughran 1281. The defence set up was, fist, that as to the rent which fell due in 1275, the suit was barred by Section 2 of Act VII of 1859; secondly; that as to all the rent which foil due prior to the 30th of Cheyt 1277, the claim was barred by limitation; thirdly, that the defendants had paid to one Captain Murray Rs. 2,500 out of the rent due by the order of the plaintiff. The defendants contended that if these deductions were made, only Rs. 2,780-3 remained due for rent, which amount they had deposited in the Collectorate.

2. It appears that the zemindars of this property and their patnidars have been for a long time in litigation with each other. In the year 1271 some opposition was made by the zemindars to the patnidars getting their names registered by the Collector This opposition was unsuccessful, and the zemindars thereupon brought two suits to recover possession of the estates, alleging that the patni leases had determined. These suits were dismissed in the year 1275. The zemindars appealed to the High Court, and their appeal was dismissed in the year 1276. The zemindars further appealed to the Privy Council, and in the year 1280 their appeal being again dismissed, this litigation terminated. Pending this litigation the zemindars had brought a suit to recover from the patnidars the amount which would have been due in respect of thepatni rent for the year 1275, but the suit was dismissed, because the zemindars sought to recover that amount, not as rent, but for the use and occupation by the patnidars of the property; the object of bringing the suit in this form being to avoid any admission that the patni leases wore in existence.

3. It is scarcely necessary to do more than to state these facts to show that the first ground of defence cannot be maintained. The defendants, or those whom they now represent, got the suit for the rent of 1275 dismissed upon the ground that it had not boon brought upon the patni leases. The present cause of action, which is based upon the patni leases, was in no sense heard and determined ” in that suit. The first ground of defence, therefore, fails.

4. It will be convenient next to take the third ground of defence. The Subordinate Judge has found that the defendants have not proved the payment, and I see no reason to interfere with his decision upon this point. Supposing it to be proved that the two receipts produced by the defendants were duly given as alleged by the executor of Captain Murray, still it is not shown that those payments were made on account of the rent of these estates. There is upon the record a document which shows that the defendants were authorized to make certain payments to Captain Murray, and to deduct those payments from the rents due by them to the zemindars; but it is sworn by the plaintiff that one of the defendants distinctly stated to him that no such payment had been made, and had these payments been made as the defendants now allege, there can scarcely be any doubt that one or both of them would have been pleade in part satisfaction of the claim for rent which fell due between Bhadro and Choitro of the year 1274, and which the plaintiff appears to have recovered in full by a decree of Court. The defendants asked to be allowed to give further evidence upon this point, but in this case both parties seem disposed to stand upon their strict rights, and I see no reason to grant them this indulgence.

5. It remains to consider the question of limitation. Section 29 of Peng. Act VII of 1869 provides that suits for the recovery of arrears of rent shall be instituted within three years from the last day of the year in which the arrears claimed shall have become due; and I think I may get rid of some of the confusion which has crept into the discussion of this part of the case by saying at once that there is nothing, unless it be some provision in the Statute itself, which will justify us in extending this period of limitation. What we have to see is when did these arrears of rent become due, and have three years elapsed since that time? Prime facie, the rents became due upon the dates when they were payable under the patni leases. But the plaintiff contends that, in this case, the rents did not fall due upon those dates, because the right to demand the patni rents was what he calls “in suspense during the pendency of the litigation as to the existence of the patni leases, and that the cause of action as to the rents which accrued during this litigation did not arise until the zemindar’s suit to recover possession had been dismissed by the highest Court of appeal.” This is how the case is put in the plaint, and this is how it has been put bofore us in argument upon the appeal.

6. The real question seems to me to be whether the defendants continued to be the patni lessees of the zemindars after the existence of their patni leases had been denied, and the suits to recover possession had been commenced; or, to put it more generally, does a landlord, by merely denying the tenancy and bringing a suit to recover possession, in which he is ultimately unsuccessful, put an end to the tenancy so long as the litigation is going on; and is the tenant at the end of the litigation restored to his tenancy from which he has been for the time ousted, or does ho simply retain a possession which has never been disturbed. It seems to me scarcely possible to doubt which of these two views is correct. I cannot see how the mere denial of the landlord, or a denial coupled with an unsuccessful attempt to eject the tenants, can in any way affect the tenant’s position.

7. The plaintiff has, however, relied on some decisions which he says support his contention.

8. The first case is that of Rani Swarnamayi v. Shashi Mukhi Barmani 2 B.L.R. P.C. 10; S.C. 12 Moore’s I.A. 244. There the patnidars being in arrears the zemindar had sold the patni for arrears of rent. The patnidars were ousted, and the purchaser put into possession. Subsequently, tin’s sale was set aside on the ground of irregularity, and the patnidars were restored to possession. A suit was then brought by the zemindar against the patnidars for arrears of rent in respect of the period that the patnidars were out of possession; the patnidars pleaded limitation, but the Privy Council held that, upon the setting aside of the sale, and the restoration of the parties to possession, they took back the estate subject to the obligation to pay the rent, and that the particular arrears of rent there sued for must he taken to have accrued due in that year in which the restoration took place; and the Privy Council are further careful to overrule an opinion which had been expressed by two learned Judges of this Court that the sale by the zemindar had, by reason of the irregularity, become altogether inoperative. The other case is that of Dindoyal Paramanik v. Radha Kishori Debi 8 B.L.R. 536; that case proceeds entirely upon the authority of the Privy Council decision above stated, and lays down no principle. There the zemindar had, under the lease, a right to put an end to the tenancy if the rent fell into arrear. The zemindar had exercised this right, and brought his suit to recover possession. He ultimately obtained a final decree for possession, but the tenant then took the advantage which the law of this country gives him of staying the ejectment by payment of the rent within fifteen days. A Division Bench of this Court held, that the obligation to pay the arrears of rent there sued for arose when the tenant took advantage of this provision of the law in his favour.

9. The only other case relied on by the plaintiff is that of Eshan Chunder Roy v. Khajah Assanoollah 16 W.R. 79. The facts are not given in the report, and all we know is, that the learned Judges who decided it thought that the principle laid down by the Privy Council very clearly applied to that case also.

10. So far, therefore, as authority is concerned, what we have principally to deal with is the decision in the Privy Council. But I think that that case is clearly distinguishable from the present. In that case, by a proceeding which, though irregular, was not inoperative, the zemindar had put an end to the tenancy and ejected the tenant. The tenant taking advantage of the irregularity got this proceeding set aside, and recovered possession. The Privy Council held that the tenant recovered the tenancy burdened with the obligation to pay the arrears of rent. In the present case there was no proceeding, however irregular, by which the zemindar could put an end to the tenancy. In no sense of the word was the tenant ousted, nor when the litigation terminated, was he restored to possession. The landlord had, no doubt, put himself into a position in which lie considered it disadvantageous to himself to accept or recover rent from his tenant; but the tenant’s position remained, as far as I can see, wholly undisturbed. It seems to me, therefore, that there is no ground upon which we can depart from the ordinary rule that the rents fell due in each successive year according to the dates specified in the patni pattas.

11. The plaintiff’ has, however, attempted to escape the effect of the law of limitation by alleging that an entirely new and different cause of action arose by reason of a settlement of accounts which he alleges took place between himself and the defendants in Cheyt 1281 (March 1874). He says that zemindar’s accounts were then submitted of the rents due from the 1st of Bysack 1275 to Aughran 1281, and it was agreed that if certain deductions were made on account of payments to Captain Murray, the balance would lie settled and paid. The plaintiff’ says, that he agreed to the proposed deductions, but that the defendants subsequently refused to pay the amount agreed upon. The plaintiff has not boon very clear as to what use he would make of this arrangement. In the Court below he seems rather to have relied upon it as an acknowledgment which would bar the operation of the Statute of limitation, though I think lie did also put it forward, though less confidently, us what under the English law is called an “account stated.” I do not understand that the plaintiff any longer insists upon this arrangement as affecting the operation of the law of limitation upon the claim for arroars of rent. He did not produce at the trial any acknowledgment which would have that effect. Nor does the evidence seem to me to prove an account stated which would form an independent cause of action. He says that the account showed Rs. 24,143-10 as the whole amount due, and that from this Rs. 2,500 was deducted on account of Captain Murray, and four or five hundred rupees besides, but he cannot say exactly how much. But the very essence of an account stated is that an exact account was agreed upon between the parties. But there is a further difficulty in the way of the plaintiff in this part of the ease. He says in his evidence” I did not agree to allow unconditionally, the deduction of Rs. 2,500; this is also stated in the plaint.” The plaint is certainly susceptible of this interpretation. It may mean that the arrangement was that if the rents were paid minus the deduction without further dispute, then, and then only, the deduction would be allowed. But this is not such a final statement of accounts as would give the plaintiff’ a new cause of action.

12. I think, therefore, that so much of the claim as is for arrears of rent which fell due prior to the 30th Cheyt 1277 is barred by the law of limitation. As to the question of interest both parties are dissatisfied with the decision of the Subordinate fudge upon this point. Ho has allowed interest from the time the validity of the patni leases was finally established, and he thinks that, up to that time, it was, no doubt, the fault of the zemindars that the rents were not paid. This is not altogether so. If the defendants felt any hesitation about paying as for use and occupation, they might have deposited the rents in the Collectorate. Section 21 of Beng. Act VIII of 1869 shows that, ordinarily, a landlord will get interest unless there are special grounds for making an exception. We do not think that such special grounds exist here. The account will be made up upon this principle, and deducting the amount deposited with the Collector, which the plaintiff is entitled to receive, the plaintiff will get a decree for the balance, and costs of both Courts in proportion. Costs to be added to the amount decreed, and the whole to carry interest at 6 per cent, from the date of decree.

13. Two objections only have been pressed before us in this case. One is, that interest should not be allowed on the sum of Rs. 2,780-3-8 tendered in December, 1874. According to the usual rule, the plaintiff was only bound to accept the amount he was then entitled to receive. He was not bound to accept a less sum; and, therefore, the tender of it ought not to stop interest running upon it.

14. On the other question,–namely, whether interest should be given from the date of the decree, it is only objected that that question was not open to us on the appeal. It is sufficiently raised by the objections taken on both sides to the amount of interest allowed by the Court below. Both the objections, therefore, fail. The decree will be made up upon the account filed by the plaintiff.

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