M.M. Dutt, J. - (1.)This appeal is at the instance of the Plaintiffs and it arises out of a suit for recovery of a sum of Rs. 2177. -8 -3.
(2.)The case of the Plaintiffs is that, one Mahammad Ramjan is a thika tenant under the Plaintiffs in respect of two plots of land known as municipal huts Nos. 6 and 17 appertaining to premises No. 145 -B Chittaranjan Avenue, Calcutta, belonging to the Plaintiffs. The said tenant deposited rents and taxes in the year 1953, 1954 and 1955 in the Court of the Registrar, Presidency Small Cause Court, Calcutta, acting as the Thika Controller, Calcutta, to the credit of the Plaintiffs. The Plaintiffs made two applications before the Thika Controller praying for withdrawal of the rents and taxes deposited by the said tenant in respect of municipal huts Nos. 6 and 17. On February 4, 1956, the Thika Controller paid the Plaintiffs certain sums of money on account of rents and taxes deposited by the said tenant but did not pay the sum of Rs. 1315 -6 -6 being the aggregate amount of the sums deposited by the said tenant as per particulars mentioned in the plaint in respect of municipal hut No. 6 and also a sum of Rs. 862 -1 -9 being the aggregate of the sums of money deposited by the said tenant as per particulars mentioned in the plaint in respect of municipal hut No. 17. The Plaintiffs, therefore, claim a total amount of Rs. 2177 -8 -3. The present suit was instituted by the Plaintiffs after the service of a notice under Sec. 80 of the Code of Civil Procedure. The Defendant, the State of West Bengal, entered appearance and contested the suit by filing a written statement. The Defendant in its written statement admitted the deposit of the sums of money in the years 1953, 1954 and 1955 by the said tenant as mentioned in the plaint. It is, however, alleged that the sums which were deposited were duly forwarded to the Plaintiffs by postal money orders under Sec. 20(1) of the Calcutta Thika Tenancy Act by the Thika Controller. It is, further, alleged that some of the money orders out of the aforesaid remittances were returned undelivered and duly kept in deposit in the Controller's office. As regards other money orders, the Defendant after inspection of the Controller's office records and after enquiring from the postal department, could not ascertain whether they had been paid to the Plaintiffs as the Controller did not receive intimation of acknowledgment or non -delivery in that behalf. It is admitted that the said Mahammad Ramjan is a tenant of the Plaintiffs in respect of municipal hut No. 17. It is, however, denied that the said Mahammad Ramjan is a tenant of the Plaintiffs in respect of municipal hut No. 6. It is alleged that the said Mahammad Ramjan is a tenant of the Plaintiffs in respect of municipal hut No. 7 and not municipal hut No. 6. The Defendant denies the title of the Plaintiffs to municipal hut No. 6. The Defendant admits that the Plaintiffs are entitled to the payment of a total sum of Rs. 478 on account of rents and taxes deposited by the said Mahammad Ramjan which were sent to the Plaintiffs but which came back undelivered. It is contended by the Defendant that the 1 suit is not maintainable and that the Plaintiffs' claim is barred by limitation.
(3.)Learned City Civil Court Judge came to the finding that the said Mahammad Ramjan was also a tenant of the Plaintiffs in respect of municipal hut No. 6 and that he was never a tenant of the Plaintiffs in respect of municipal hut No. 7 as alleged by the Defendant. The learned Judge, further, found that the Plaintiffs were entitled to Rs. 2177 -8 -3 from the Defendant minus a sum of Rs. 478 admitted by the Plaintiffs to have been paid by the Defendant during the pendency of the suit. In spite of the said finding, the learned Judge dismissed the suit on two grounds. The first ground was that the Thika Controller forwarded the amounts deposited by the said tenant, under Sec. 20(1) of the Calcutta Thika Tenancy Act, by postal money orders excepting a sum of Rs. 154 -2 -3 covered by the deposit challan No. 1465A. The learned Judge took the view that after the Thika Controller remitted the amount by postal money orders in terms of Sec. 20(1), his duty came to an end. The learned Judge found that no such amount came back to the office of the Thika Controller as having been refused by or undelivered to the Plaintiffs. On that ground the learned Judge held that the Defendant was not liable for the amount claimed by the Plaintiffs excepting the said sum of Rs. 478 which had been paid to the Plaintiffs by the Defendant during the pendency of the suit. The second ground was that the suit was not maintainable in view of the provision of Sec. 22(2) of the Calcutta Thika Tenancy Act. On these two grounds the learned Judge, as aforesaid, dismissed the Plaintiffs' suit. Hence, this appeal by the Plaintiffs.