Judgement

Appeal from a judgment and decree of the High Court (July 9, 1914) affirming a decree of the Subordinate Judge of Purneah (April 14, 1910).

The suit was instituted on September 14, 1908, by Hukumchand Boid (since deceased, and represented by the appellants) against the respondent. The material facts appear from the judgment of their Lordships.

The Subordinate Judge, upon the issues framed, held, inter alia that the plaintiff had purchased benami for the patnidar; that the suit was for money paid for a consideration which had failed; that time began to run on August 24, 1905, when the sale was set aside; and that consequently it was barred by the Indian Limitation Act, 1877, Sched. II. Art. 97; that the remedy given to a purchaser by s. 14 of Bengal Regulation VIII. of 1819 did not exclude other remedies. He dismissed the suit.

The High Court affirmed the decree. The learned judges (Fletcher and Richardson JJ.) doubted whether the suit lay having regard to the terms of s. 14 of the Regulation; they disagreed with the finding that the plaintiff had purchased benami for the patnidar, pointing out that the Subordinate Judge had not found that the patnidar had provided the purchase money; upon the question of limitation, they held that the suit was barred by art. 97, except as to the last two items claimed; as to those items—namely, rent paid to the zamindar after the sale and interest thereon—they said that the plaintiff having been in possession there had been no failure of consideration.

1914. Oct. 24. P. O. Lawrence K.C. and E. B. Raikes for the appellants. The suit was not barred by limitation. There was not a complete failure of consideration until August 28, 1906, when the plaintiff gave up possession Hanuman Kamu v. Hanuman Mandar (( 1891) L. R. 18 I. A. 158.); Narsing Shivbakas v. Pachu Ram-bakas. (( 1913) I. L. R. 37 B. 538.) With regard to the rent, the sale being set aside the zamindar was not entitled to it. The High Court overlooked that under the decree setting aside the sale the purchaser had to pay mesne profits to the darpatnidars. If time ran from the setting aside of the sale it ran from the decree of the High Court of August 3, 1906, and the suit was brought in time Venkatanarasimhulu v. Peramma. (( 1894) I. L. R. 18 M. 173.) The remedy given by s. 14 of Bengal Regulation VIII. of 1819 is not exclusive of other remedies Radha Madhub Samonta v. Sasti Ram Sen. (( 1899) I. L. R. 26 C. 826.) There is no statutory provision taking away a purchasers ordinary right of action. The Subordinate Judge, not having found that the patnidar paid the purchase price, should not have held that the plaintiff was a benamidar Faek Buksh v. Fukeeboodeen. (( 1871) 14 Moo. I. A. 234.)

De Gruyther K.C. and Dunne K.C. for the respondent. The suit was barred by art. 97, if it lay at all. The contention that time ran from the relinquishment of possession is based upon a misapprehension of the nature of patni tenure and of the proceedings under the Regulation. The zamindar had no right to possession or in ejectment. If there was any right of action against the zamindar it arose on August 25, 1905, when the sale was set aside. The suit could have been brought although the decree was under appeal. But in fact there was no contract between the zamindar and the plaintiff, the sale not being by the zamindar but by the Collector under the Regulation. It is for that reason that s. 14 give, a remedy to the purchaser, there being no remedy by action. Further the plaintiff upon the appeal to the High Court from the decree under s. 14 could have asked for an indemnity, not having done so he is barred by res judicata. If there was any cause of action for the rent paid after the decree it was against the patnidar. But in any case the claim to those amounts was barred. Upon the facts the plaintiff was benamidar for the patnidar, and the whole claim, therefore, necessarily failed.

P. O. Lawrence K.C. in reply. The Regulation treats a sale as on