- (1.) These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February 1945 reversing the judgment and decrees passed by the District Judge of Birbhum dated 16th December 1936. The principal questions for determination are the same in all of them and can be conveniently disposed of by one judgment.
(2.) It is necessary to set out briefly the history of this half a century old litigation. The seven suits out of which arise Appeals Nos. 68 to 74 were filed in September 1904 by Maharaja Bahadur Singh, in the Court of the different Munsifs at Rampurhat, against Raja Ranjit Singh Bahadur, deceased, and others, for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899 till recovery of possession. It was alleged that the lands in the several suits were chowkidari Chakran lands within the plaintiff's patnidari, granted to his predecessors in interest on 14th November 1853 by the ancestors of the defendant, that as the lands were in possession of village watchmen, on service tenures, they were excluded from assessment of land revenue and no rent was paid on them, that in the year 1899 under the provisions of Ss. 50 and 51 of Bengal Act VI of 1870 Government resumed the lands, terminated the service tenures and settled them with the zamindar, that in this situation the plaintiff's patnidar became entitled to their actual physical possession, that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed. The suits were decreed on 17th August, 1905 and 19th August, 1905 by the two Courts respectively and the decisions were affirmed; on appeal by the District Judge. On special appeal to the High Court, the suits were remanded for trial on the question of limitation, and after remand they were dismissed by the trial Court and the Court of appeal as barred by limitation. On second appeal, it was held that the suits were within limitation and were then decreed for the second time. This decision was affirmed on appeal to His Majesty in Council. The plaintiff actually obtained possession of the lands involved in these suits in August 1913. An application was made for ascertainment of mesne profits on 6th November 1918. This was resisted by the defendant and it was pleaded that the plaintiff was not entitled in interest on mesne profits, that the zamindar was entitled to receive the profits of the disputed lands and that deduction should be made out of the amounts of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him. Five years later, on 24th June 1927 another set of objections was filed by the zamindar claiming deduction out of mesne profits by way of equitable set-off of the payments made by him subsequent to the date of delivery of possession as well as for the amount of munafa that became payable to him after that date. After a prolonged enquiry the trial Court on 18th December 1937 decreed the plaintiff's claim for mesne profits after allowing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable set off for the subsequent period. The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set-off, subject, however, to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defendant's dues were wiped off. The relevant part of his judgment runs thus : "The broad fact is that they (plaintiffs) have been in possession of the lands Since 1910 and have been in enjoyment of rent from the tenants from that date and according to law they are not entitled to possess the land unconditionally. Now that all the facts are before the Court and the time has come for final adjustment of accounts between the parties the Court should try to do substantial justice between the parties. It is not sufficient answer to say that the plea of equitable set off was not raised in the beginning. The circumstances in all these cases are peculiar and it could hardly be expected that such plea would have been taken in the very beginning. The course of litigation in these cases has not run along easy and smooth channels: on the contrary its course has been extremely tortuous and disturbed frequently by conflicting decisions. No one could have reasonably anticipated in the beginning that the litigation would be protracted in this extraordinary way. It is the duty of the Court to take notice of the subsequent events in order to do justice between the parties......As we are dealing with the question of equitable set-off, no question of time-barred debts or unascertained sum can arise..... The plea of equitable set-off in respect of time-barred debts can be set up as a shield by way of defence nor can any question of payment of court-fees arise. There is, in my opinion,. no substantial difference in the character of the respective parties during the entire period and it would be futile to make an attempt at distinction by over-subtle argument where there is really no difference in substance. There is considerable force in the argument advanced on the side of the appellant, namely, the appellant's claim to the equitable set off is really 'in the nature of cross-demand arising out of the same transaction and connected in its nature and circumstances'....... From whatever standpoint the matter may be looked at I am of the opinion that the claim of the appellant for equitable set-off for the 'subsequent period' by way of deduction of the chowkidari revenue and cess paid by him as well as on account of munafa should be allowed. This amount will also carry interest at 6 per cent per annum up to date. The subsequent period means the period since the date of delivery of possession up to 1927-28." Against the judgment and decrees of the District Judge the plaintiff preferred appeals to the High Court at Calcutta. The High Court by the judgment under appeal modified the decrees of the District Judge and disallowed the claim for equitable set-off in its entirety for the subsequent period and restored the decree of the trial Court. The zamindar filed applications for leave to appeal to His Majesty in Council. These applications were consolidated with similar applications filed in the second batch of suits. A certificate was granted for leave to appeal to His Majesty in Council. By an order dated 9th June 1947 all the appeals were admitted and it was directed that the proceedings be printed and transmitted to England. During the pendency of the proceedings in the High Court, Raja Bhupendra Narayan Singh died and the present appellant was impleaded as his heir and representative. An application was also made in the High Court for permission to urge additional grounds not already taken. After the abolition of the jurisdiction of the Privy Council these appeals were transmitted to this Court.
(3.) An application under Order XIX, Rule 4 of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals, viz.: 1. That the munafa (rent) should not be calculated on the basis of the principles laid down in 'RADHACHARAN v. RANJIT SINGH', 27 Cal L J 532. 2. That the said munafa should have been assessed on a fair share of the profits from the land.;