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1956 DIGILAW 12 (KER)

Ithappiri Varkey v. Govindan Nambuthiripad

1956-01-17

VARADARAJA IYENGAR

body1956
Judgment :- 1. This is a defendant's appeal in a suit for declaration that more jenmikaram than settled is due and for recovery of arrears on such basis. The suit was dismissed by the trial court as barred by limitation but allowed by the lower appellate court as not so barred. 2. The Jenmikaram Settlement in respect of the plaint property took place on 30.6.1110 vide Ext. I. The Government commenced collection of the jenmikaram as so settled on behalf of the jenmi from 1117. It is the plaintiff's case that enhanced jenmikaram was really due and the defendant-tenant made up the deficit for 1117. See Ext. D (1) and E Nalvazhi and Thandaper accounts maintained by the plaintiff in the name of the defendant. The cause of action was said to arise on the defendant's failure to comply with the plaintiff's demand to execute necessary record for assessing the correct jenmikaram and pay the arrears from 1118. The suit was accordingly laid on 29.3.1125 for declaration as to the proper jenmikaram due and for realisation of the arrears. 3. The defendant denied the payment in 1117 as alleged and asserted that the claim made by the plaintiffs was excessive and could not be allowed. He also pleaded limitation. 4. According to the trial court the cause of action for the suit arose from 30.6.1110 viz., the date of Ext. I decision and the suit was barred whether on the basis of Art.131 or Art.120 of the Limitation Act. The statement of the defendant as Dw.1 nor the accounts Exts. D(1) and E did not also serve as acknowledgment under S.20 of the Limitation Act. The lower appellate court held however that the cause of action arose only in 1118 and the suit filed in 1125 within a period of 12 years was not barred under Art.131 of the Limitation Act. 5. D(1) and E did not also serve as acknowledgment under S.20 of the Limitation Act. The lower appellate court held however that the cause of action arose only in 1118 and the suit filed in 1125 within a period of 12 years was not barred under Art.131 of the Limitation Act. 5. Learned Counsel for the defendant-special appellant says that the one year rule under Art.14 of the Limitation Act should be held to apply in as much as an order of the Jenmikaram Settlement Officer in his official capacity requires to be set aside and the starting point would then be the date of the order viz., 30.6.1110; alternatively the period of limitation was 6 years under Art.120, the suit being viewed as one for declaration, for which no period of limitation was provided in the Limitation Act and the starting point being again the date of the Settlement Officer's decision. In either view the suit was barred by limitation. Learned Counsel for the plaintiff sought to support the decision of the court below. 6. Taking first the applicability of Art.14 of the Limitation Act, it is easily clear that the plaintiff's relief does not consist in setting aside any order of any officer of Government. Where it is not necessary for the plaintiff to set aside an act or order, in order to obtain the relief which he claims, the Article will not apply. See Bimalendu Roy v. Deity Gopal Deb, AIR 1946 Cal. 480. The jenmi's right to recover jenmikaram is not created or conferred by the Jenmikaram Settlement Register or by the Jenmikaram Settlement Officer; it is created by force of the statute. Jenmikaram is defined in S.3(17) as follows: "Jenmikaram in respect of a jenmom land or holding means the amount payable in respect of that land or holding under the provisions of this Regulation by the Kudiyan to the Jenmi every year in lieu of all and every one of the Jenmi's claims in respect of the land or holding". and S.5 provides, apart from the Explanations thereto, "From and after the commencement of the Amendment Regulations, the Jenmi shall not have any right, claim or interest in any land in a holding except the right to receive the jenmikaram .............................. . and S.5 provides, apart from the Explanations thereto, "From and after the commencement of the Amendment Regulations, the Jenmi shall not have any right, claim or interest in any land in a holding except the right to receive the jenmikaram .............................. . If therefore the Jenmikaram Settlement Officer fails to make the necessary entries in respect of a holding whether owing to his own neglect or that of an interested party the remedy is still available to the party affected by a suit in the civil court. See Nampotha Namboori v. Mariam, 1946 TLR 4 where the exact nature of the jenmikaram right is fully discussed. 7. Next as regards applicability of Art.131 learned Counsel for the defendant says that the right to jenmikaram was not a periodically recurring right within the meaning of Art.131 but it was rather in the nature of a perpetual right to receive year after year a particular quantity of paddy or sum of money and he relied upon the distinction pointed out by Mr. Justice Somayya in Kaliammai Ammal v. Shanmuga Rajeswara Sethupathi, AIR 1945 Mad. 20. According to that learned judge, in order to be a periodically recurring right, it must be one which varied according to the circumstances each time it accrued. e.g., a right to recover certain allowances out of the income of a particular property where, if the property did not produce sufficient income in any year, the right to the allowance would not accrue. Why a periodically recurring right should necessarily involve such a fluctuation is not very clear. The section does not seem to insist on more than a periodical recurrence of the dues, that is to say, the right should not have accrued once and for all. The Madras High Court had earlier suggested the test that the right must be vested in two different persons at two different points of time. See Ghulam Ghouse Khan v. Jannia, AIR 1920 Madras 447. But that test was dissented from by the same High Court in Hussain Rateha v. Secretary of State, AIR 1941 Madras 428. But I may say that if it is necessary, it is even possible in this case to apply the test suggested by Somayya in Kaliammai Ammal v. Shanmuga Rameswara Sethupathi, AIR 1945 Mad. But that test was dissented from by the same High Court in Hussain Rateha v. Secretary of State, AIR 1941 Madras 428. But I may say that if it is necessary, it is even possible in this case to apply the test suggested by Somayya in Kaliammai Ammal v. Shanmuga Rameswara Sethupathi, AIR 1945 Mad. 20 for the jenmikaram dues are not fixed once and for all but are subject to variation as a result of further settlements. Series of cases have settled that annuities, dividends, interest, maintenance, or rent are periodically recurring for purpose of Art.131. There is no reason, therefore, to hold that Art.131 cannot apply to Jenmikaram dues also. 8. Learned Counsel then says that the plaintiff must be deemed to have been refused enjoyment of anything in excess of the rate fixed in Ext. I when the jenmikaram was settled by the Jenmikaram Settlement Officer and on this basis the suit filed more than 12 years after Ext. I date viz., 30.6.1110 must be deemed to be barred. To constitute a refusal however within the meaning of the Article, there must be a definite demand and refusal. The mere fact that the plaintiff had not exercised his right is not enough. Therefore it has been held in Manohar Das v. Charu Chandra AIR 1951 Cal. 385 that if there is no evidence of demand of rent by land-lord or refusal by tenant the suit for rent was not barred. Similarly in Secretary of State v. Parashram Madvrao AIR 1934 PC 108, a person was entitled to receive from Government certain percentage of the yearly revenue collections in certain villages. The Government without authority substituted in 1889 a fixed allowance to be paid and was paying the same. In 1900 a demand against Government was made for the exact percentage as distinct from the fixed allowance. The Government refused the application in 1913 and the suit was taken for declaration of the right to receive the allowance on the percentage basis in 1923. Their Lordships of the Privy Council held that the starting point under the Article for the suit was the refusal by the Government in 1913 and that the suit was not barred. The Government refused the application in 1913 and the suit was taken for declaration of the right to receive the allowance on the percentage basis in 1923. Their Lordships of the Privy Council held that the starting point under the Article for the suit was the refusal by the Government in 1913 and that the suit was not barred. In this case there is no evidence or allegation even that there was a demand and a definite refusal at any time before 1118 as alleged by the plaintiff and if so the suit is not barred under the Article. 9. Even assuming that Art.131 may not apply but Art.120 applies as alternatively suggested by the learned Munsiff, still the starting point of limitation under the latter Article is the accrual of the right to sue, that is to say, when the right to seek relief arises. Such right to sue must depend largely upon the circumstances of the particular case and applied here it must mean the right to bring this particular suit on the defendant's denial of the plaintiff's right to collect the jenmikaram at the excess rate claimed. Dealing with the starting point under Art.120, the Privy Council observed in Mt. Bolo v. Mt. Koklan,11 Lahore 657. "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted". As it is not asserted in this case that there had been clear and unequivocal denial of the plaintiff's claim before six years of the present suit the suit cannot be said to be barred even under Art.120 of the Limitation Act. 10. In my view of the case the suit has to be held to be in time. The decision of the lower court is therefore right but as the trial court has disposed of the suit only on the preliminary point as to limitation and has left the rest of the issue undecided, the suit has to go back to the trial court for disposal on the rest of the issues according to law and in the light of the observations herein. The plaintiff is entitled to the costs he has so far incurred and this will be provided for in the decree to be passed by the trial court after remand. Ordered accordingly. Remanded.