Supreme Court: The plaintiff had claimed the rusum in his suit filed on 18th Khurdad 1338 Fasli (22-4-1929) from the defendants and Sadar Adalat, in appeal, had decreed the plaintiff’s claim for the rusum in full, that is, from 1315 to 1338 Fasli (From 1905-06 to 1928-29) at the rate of 5%. The Hyderabad High Court (‘High Court’) on appeal had modified the decree and had held that the plaintiff was entitled to the rusum only from 1318-1338 Fasli. The defendant and the plaintiff filed an appeal and a cross-appeal respectively, against the judgment of the High Court and these appeals were later admitted in the Judicial Committee of the State and were presently before this Court for disposal under Article 374 of the Constitution. The Division Bench of M.C. Mahajan and R.S. Naik, JJ.*, held that the plaintiff was not entitled to any exclusion of time either under Section 14 or 15 of the Limitation Act, 1908 (‘Act’), and thus, the claim of the plaintiff for the rusum from 19th Khurdad 1332 Fasli (23-4-1923) to 18th Khurdad 1338 Fasli (22-4-1929) was decreed at 5% as per Circular No. 48 of 1292 Hijri and the remaining part of the plaintiff’s claim was dismissed, that is, the same being beyond six years from the date of filing of the plaint.
Background
The plaintiff in the suit was the Deshmukh of three villages of Karpamla-Kalan, Karpamla Khurd and Satapur, situated in the Jagir of the defendant. The plaintiff claimed his rusum-i-deshmukhi (fee or perquisites allowed to the Revenue Collector) which, he alleged, was being paid to his family from time immemorial by the ancestors of the defendant. He further submitted that after the death of Moti Begum, a jagirdar, the jagir was confiscated in 1317 Fasli (1907-08) and later, re-granted to the defendant in 1323 Fasli (1913-14). The plaintiff’s father on 13th Amardad 1320 Fasli (19-6-1911) applied to the Government for the rusum at the rate of 12½ alleging that the rusum had not been paid to him by the jagirdar since 1315 Fasli (1905-06). The plaintiff’s father’s claim for the rusum was enquired into by the Atiyat (Grant) Department and was eventually recognised by a decision of the Atiyat appellate authority in 1336 Fasli (1926-27). By the same decision, it was held that the plaintiff’s father was entitled to the rusum at the rate of 5% and not at 12½, as claimed by him. The plaintiff’s father died on 11th Khurdad 1337 Fasli (15-4-1928) and thus, the present suit was filed by the plaintiff on 18th Khurdad 1338 Fasli (22-4-1929). The plaintiff had claimed the rusum at the rate of 12½ up to 1336 Fasli (1926-27) and at the rate of 5% for the subsequent years. The defendant denied the right of the plaintiff to the rusum and he further contended that the suit was not maintainable for want of permission from the Government.
The Trial Court decreed the suit for the rusum only for three years, that is, from 1336-1338 Fasli (1926-27 to 1928-29), holding that Article 89 of the Hyderabad Limitation Act, 1322 Fasli equivalent to Article 102 of the Indian Limitation Act, 1908, was applicable to the case and that the rest of the plaintiff’s claim was barred by limitation. Both the parties went in appeal to Sadar Adalat, which allowed the appeal of the plaintiff and decreed his claim for the rusum in full, that is, from 1315-1338 Fasli (from 1905-06 to 1928-29) at the rate of 5%, as per Circular No. 48 of 1292 Hijri and dismissed the appeal of the defendant. The defendant filed an appeal to the High Court against the decision of Sadar Adalat (‘Appellate Court’). The High Court modified the decree of the Appellate Court and held that the plaintiff was entitled to the rusum only from 1318-1338 Fasli.
It may be that this modification was made in view of the fact that the defendant had no right in the jagir till after the death of Moti Begum in 1317 Fasli (1907-08), and that the grant to the defendant, according to the Atiyat law, is deemed to be a fresh grant.
Analysis, Law, and Decision
This Court observed that it was not clear from the judgment of the High Court why the claim for rusum from 1315 to 1318 Fasli was disallowed. This Court opined that it might be that this modification was made because the defendant had no right in the jagir till after the death of Moti Begum in 1317 Fasli (1907-08), and that the grant to the defendant, according to the Atiyat law, was deemed to be a fresh grant.
This Court noted that on the question of the necessity of obtaining permission from the Government to file the suit, all the three lower Courts have held against the defendant. The Court opined that the only argument of the counsel for the defendant had been that Article 106 of the Hyderabad Limitation Act, equivalent to Article 120 of the Limitation Act, applied to this suit, the plaintiff could not claim the rusum for the years prior to 1333 Fasli, that is, beyond six years from the date of filing the plaint.
This Court noted that the counsel for the plaintiff admitted that unless the benefit of Sections 14 and 15 of the Limitation Act, 1908 was given to him, the contention of the defendant was correct. Section 14 provided for the exclusion of time spent in proceedings in a civil court which, for want of, or defect in jurisdiction, was unable to entertain it. This Court opined that this was not the case of the plaintiff and therefore, Section 14 did not help the plaintiff in any way. This Court further opined that as for Section 15, the plaintiff had not proved that he was prohibited from coming to a Civil Court by any order of the Government or by any provision of law. On the other hand, the plaintiff’s contention had all along been that no permission from the Government was necessary for claiming the rusum, to which he was entitled by the grant. Therefore, the Court held that the plaintiff was not entitled to any exclusion of time either under Section 14 or 15 of the Limitation Act, 1908.
The appeal of the defendant was therefore partly allowed, and the claim of the plaintiff for the rusum from 19th Khurdad 1332 Fasli (23-4-1923) to 18th Khurdad 1338 Fasli (22-4-1929) at the rate of 5% as per Circular No. 48 of 1292 Hijri was decreed, and the remaining part of his claim was dismissed. The cross-appeal of the plaintiff for the rusum for the year 1315 Fasli was also dismissed in consequence. This Court further held that the parties would bear their own costs of these appeals.
[Mohd. Khanjehan Khan v. Raja Surbhi Venkat Jagannath Rao, 1950 SCC 1034, decided on 5-10-1950]
*Judgement authored by: Justice M.C. Mahajan and Justice R.S. Naik
Buy Constitution of India HERE
