DAS GUPTA - (1.) , J.: Dhalbhum estate which covers an area of more than 1,000 sq. miles and lies partly in the District of Midnapur and partly in the District of Singhbhum is rich in minerals. In 1900 the then Proprietor of this estate Raja Satrughan Deo Dhabal Deo the predecessor-in-interest of the first respondent Jagdish Deo Dhabal Deo granted permanent lease of the mining rights for certain metals and minerals in this estate to Prince Mohammad Bakhtyar Shah of Tollygunge in the District of 24-Parganas. Raja Satrughan Deo Dhabal Deo died in 1916. Before his death however the management of the estate had been taken over by the Deputy Commissioner of Singhbhum under the Chotanagpur Encumbered Estates Act. In the course of such management the Manager of the Estate granted on September 1, 1919, to the Official Receiver to the estate of Prince Mohammad Bakhtyar Shah another lease in respect of mining rights in the same area. The present litigation was commenced by the first respondent with a view to recover rent and royalties on the basis of the second lease from the heirs and representatives of the estate of Prince Mohammad Bakhtyar Shah and also from the present appellant as Receiver to that estate. As under the terms of the lease the lessor is entitled to the half share of the receipts on account of rents and royalties and other incomes in respect of the minerals demised and the exact income could not be known until accounts were furnished by the lessee, the defendant prayed for a decree for accounts from 1/01/1926, and for a decree for the sum found due on such accounts. As the suit was brought on 12/08/1941, the period prior to 12/08/1935, would prima facie be barred by limitation. According to the plaintiff limitation was saved by the acknowledgments that had been made from time to time by the then Receiver of the estate. Two defence were raised by the Receiver who was the only contesting defendant. The first was that the lessor had dispossessed him from part of the leasehold property and so there ought to be total suspension of rents and royalties. The second defence was as regards the claim for the period prior to 12/08/1935. It was pleaded that the letters which are claimed to have acknowledged the liability did not in law amount to acknowledgment of liability and that in any case the alleged acknowledgments being by the Receiver who was an agent of the court and not an agent of the parties the acknowledgments would be of no avail in saving limitation.
(2.) THOUGH the written-statement itself did not in terms mention the nature of the lessee's dispossession from the leasehold property the definite case at the trial was that this dispossession was in respect of minerals which had been specifically excluded from the earlier lease of 1900 but according to the defendant included in the later lease. One of the main questions in the appeal is whether the minerals specifically excluded in cl. 16 of the earlier lease were demised to the lessee by the later lease of 1919. Of the several issues that have been framed we are therefore concerned now only with the two issues in respect of these two defences. The first of these is : "Is the defendant entitled to suspension of rents and royalties as claimed"; the second is : "Is any portion of the plaintiff's claim barred by limitation?" The Subordinate Judge held on a construction of the lease of 1919 that it did not include minerals specifically excluded by cl. 16 of the earlier lease and as the only case of dispossession from leasehold property was made in respect of these minerals the plea of suspension of rent must fail. He also negatived the plea of limitation, being of opinion that the Official Receiver was competent to make such acknowledgments and that in fact there were acknowledgments of the plaintiff's liability within the meaning of S.19 of the Limitation Act. With regard to the period from 1935 to 1941, regarding which no question of limitation arose the Subordinate Judge gave a decree of rendition of accounts and for payment of such amounts a would be found on accounting by the Commissioner. On the basis of his finding that there was an acknowledgment of liability to the extent of Rs. 67,459-3-3 as due under the terms of the two leases up to the year 1935 but that there was no material on the record to find out as to what was the amount due up to that year on the basis of that second lease, he made an order in the following terms : "The defendant is hereby directed to assess and state the amount due under the lease in suit out of the aid sum of Rs. 67,459-3-3 on the basis of the accounts of his office ... in respect of the plaintiff's dues within two months from this date, failing which a Commissioner will be appointed to take accounts and ascertain the amount due to the plaintiff, and the defendant shall be liable for the costs of the same." Against this decree the contesting defendant, the Receiver appealed to the High Court of Judicature at Patna. Before the appeal court two points were raised. The first was that on a proper construction of the 1919 lease it should be found that the minerals specifically excluded in clause 16 of the earlier lease were included in the 1919 lease and consequently, the lessee having granted certain leases to other parties in respect of these minerals in the areas the lessee was entitled to suspension of rents. The other point raised was that in law there was no acknowledgment which could save limitation in respect of the claim prior to 12/08/1935.
(3.) ON both these points the learned judges of the Patna High Court who heard the appeal agreed with the conclusions of the Trial Judge. ON the first point they held that the minerals excluded by clause 16 of the 1900 lease were not included in the second lease and so there was no question of any suspension of rents. They also held that quite apart from the question of construction of the document, the lessee was not entitled to suspension of rents as in order to justify withholding of the rents, the act of the landlord must be forcible or, at any rate, tortuous and that these condition had not been established in the present case. ON the second question, the learned judges a held that the letters on which the plaintiff relied to show acknowledgments by the Receiver did in law amount to acknowledgments and the acknowledgments being by the Receiver who was himself bound to pay the rent due to the superior landlord were good acknowledgments within the meaning of S. 19 of the Limitation Act. Accordingly they dismissed the appeal.;