Authored By : Henry Reynell Holled Coxe, Ray

Henry Reynell Holled Coxe, J.

1. In this case, it appears that the plaintiffs were amongthe superior landlords of the land in suit and that the defendants were raiyatsunder them. The defendants sub-leased the land in suit to the plaintiffs inorder that they might build a market thereon. Afterwards when the market ceasedto exist, the defendants re-took possession. The plaintiffs have brought thissuit to recover possession which has been dismissed by the lower AppellateCourt on the ground that it is barred by the special limitation provided in theSchedule to the Tenancy Act.

2. The plaintiffs appeal and it is contended on theirbehalf, first, that the suit is not governed by the Tenancy Act, as the landwas not agricultural land. I have no doubt that the Tenancy Act applied to theraiyati interest. This was not disputed in the Courts below and was but faintlyargued in this Court. The fact that a Record of Rights has been prepared forthe land shows that it is ordinary tenancy land. It is argued, however, thatthe land, being sub-let for the purposes of building a market, the subordinatetenancy at any rate does not come under the Tenancy Act. This, however, seemsto me a fallacy. There is nothing in the Tenancy Act confining its operation toagricultural land except the definition of a raiyat which means a person whoacquires a right to hold land for the purpose of cultivating it. Thus the lawgoverning raiyats must necessarily be concerned only with agricultural land.But the definition of an under-raiyat has nothing to do with agriculture butmeans merely a tenant who holds under a raiyat. If, therefore, a raiyat letshis land to an under-tenant for other purposes than cultivation, that does nottake the land out of the operation of the Tenancy Act. Otherwise, a [raiyatwould be able to confer on such an under-tenant higher rights than he hadhimself, For instance, the under-tenant would be able to transfer his holdingand the raiyat would, under the Transfer of Property Act, have no power toobject. An under-raiyati is merely an interest carved out of a raiyati and mustbe governed by the same laws.

3. Secondly, it is contended that the suit does not comewithin the scope of the Schedule to the Tenancy Act because the cause of actionarose before the amendment of that Act. On this point, there has been someconflict of opinion. According to Mookerjee and N. Chatterjee, JJ., in ManjuriBibi v. Akil Mahmud : 19 Ind. Cas. 793 [LQ/CalHC/1913/152] : 17 C.W.N. 889 : 17C.L.J. 316, this view should prevail. It is opposed, however, to the decisionof Carnduff, J. in that case and to the decisions of Ramdhan Bhadra v. RamKumar Dey : 17 C. 926 and Thakomoni Dasi v. Mohendra Nath Dey: 3 Ind. Cas. 389 [LQ/CalHC/1909/408] : 10 C.L.J. 463. It appears to me, however,that matter is settled by the decision of Lala Soni Ram v. Kanhaiya Lall: 19 Ind. Cas. 291 : 35 A. 227 : 17 C.W.N. 605 : 13 M.L.T.437 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.R. 489 : 25M.L.J. 131 : 40 I.A. 74. That was a suit for redemption against thereversionary heirs of one Khushwakt Rai. In 1866 and 1867, Khushwakt Raiswidow and daughter who had succeeded him acknowledged the mortgage. The Actthen in force was Act XIV of 1859 and under that Act the mortgagor had a rightto redeem within sixty years from the date of a written acknowledgment signedby the mortgagee, "or some person claiming under him". When the suitwas brought, however, Act XV of 1877 was in force under which the mortgagor hadsixty years from an acknowledgment by the defendant or by some person throughwhom he derives title". Their Lordships observed:--"The High Courtrightly holding that the Law of Limitation applicable to a suit or proceedingis the law in force at the date of the suit or proceeding, unless there is adistinct provision to the contrary, held that Act XV of 1877 and not Act XIV of1859 was the Limitation Act which was applicable to the suit". And theirLordships further held that a right to a certain period of limitation was notsaved by section 6 of the General Clauses Act.

4. It has been argued that a distinction must be made whenthe effect of a new statute of limitation is to bar entirely a suit which, atthe date of its enactment, was within time, and that as the lower AppellateCourt finds that the plaintiff must have been dispossessed in 1903, his suitunder the amended Act would have been barred at the moment of its enactment. Inthe first place, that is not the plaintiffs case. He pleads dispossession inBysack 1314 which would be about two months before the amendment of the Act. Inthe second place, the distinction itself cannot, in my opinion, be sustainedand rests more on considerations of hardship than on any provisions of law. Nodoubt, cases of hardship may arise but, in my opinion, it would be impossibleto hold, in the case of the amendment of the Tenancy Act which came into forceon the 10th June 1908, that a suit based on dispossession on the 11th June 1906would be barred but one based on dispossession on the 9th June 1906 would notbe barred but could be brought at any time up to June 1918. It does not appearto me, that when the wording of a statute, which is laid down for guidance, isfree from the least trace of ambiguity, as for instance, the wording of section154 of the Tenancy Act, we ought to refuse to follow it in order to preventpossible injustice. I think, therefore, that the Court below is right in holdingthat the suit is barred by time and would dismiss the appeal with costs. It isunnecessary in that case to consider the further point raised that theunder-lease was void.

Ray, J.

5. I agree. The Privy Council judgment in the case of LalaSoni Ram v. Kanhiaya Lal : 19 Ind. Cas. 291 : 35 A. 227 : 17C.W.N. 605 : 13 M.L.T. 437 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488: 15 Bom. L.R. 489 : 25 M.L.J. 131 : 40 I.A. 74 settles as to what law ofLimitation is applicable and I have no doubt that the Bengal Tenancy Actapplies to the case.

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Barhanuddi Chowdhuryvs. Lal Khan (06.08.1913 - CALHC)