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PETITIONER:

RAJA BHUPENDRA NARAIN SINGHA BAHADUR

Vs.

RESPONDENT:

MAHARAJ BAHADUR SINGH AND OTHERS.(Civil Appeals Nos. 68 to 9

DATE OF JUDGMENT:

02/04/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

AIYAR, N. CHANDRASEKHARA

BOSE, VIVIAN

CITATION:

1952 AIR 201 1952 SCR 782

ACT:

Equitable set-off--Suit by patnidar against zemindar

for possession of land with mesne profits--Decree in favour

of patnidar-Claim by zemindar to set off against mesne

profits rent, revenue and cesses which accrued after deliv-

ery of possession--Maintainability.

HEADNOTE:

Where a patnidar has obtained a decree against his

zemindar for possession of resumed chaukidari chakran lands

with mesne profits from the date on which the zemindar

wrongfully took

783

possession of them, the zemindar is not entitled to deduct

by way of equitable set-off from the amount of mesne profits

payable by him under the decree, the amounts due to him on

account of rent, revenue and cesses for a period subsequent

to the date of delivery of possession of the lands inasmuch

as the two cross demands do not arise out of the same trans-

action. The transaction which led to the plaintiff's demand

for mesne profits resulted from the defendant's wrongful

act as trespasser, while the transaction which gave rise to

the zemindar's demand arose out of the relationship of

landlord and tenant and the obligations resulting therefrom.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Appeals from the judgments

and decrees dated the 23rd February, 1945, of the High Court

of Judicature at Calcutta (Akram and Blank JJ.) in Second

Appeals Nos. 861 to 885 of 1939 from the judgments and

decrees dated the 16th December, 1938, of the Court of the

District Judge, Birbhum, in Title Appeals Nos. 23 to 47 of

1938.

Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kumar

Mukherjee, with him) for the appellant in Civil Appeals Nos.

68 to 74 of 1951.

Urukramdas Chakravarthy (S. N. Mukherjee, with him) for

the respondent No. 1 in Civil Appeals Nos. 68 to 74 of 1951.

Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kurnar

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Mukherjea, with him) for the appellant in Civil Appeals

Nos. 75 to 92 of 1951.

Panchanan Ghose (Chadra Nath Mukherji, with him) for the

respondents Nos. 1 to 3 in Civil Appeals No. 75 to 92 of

1951.

1952. April 2. The Judgment of the Court was delivered

by

MAHAJAN J.--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, 1938. The principal questions for determina-

tion are the same in

102

784

all of them and can be conveniently disposed of by one

judgment.

It is necessary to set out briefly the history of this

half a century old litigation I 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 differ-

ent 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

the 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 sections 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 as patnidar became entitled to their actual physi-

cal 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 ques-

tion of limitation, and after remand they were dismissed by

the trial court and the Court of appeal as barred by limita-

tion. 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 applica-

tion was made for ascertainment of mesne profits on

785

6th November, 1918. This was resisted by the defendant and

it was pleaded that the plaintiff was not entitled to inter-

est on mesne profits, that the zamindar was entitled to

receive the profits of the disputed lands and that deduc-

tion should be made out of the amount 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 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,

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decreed the plaintiff's claim for mesne profits after allow-

ing 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 subse-

quent 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 enjoy-

ment of rent from the tenants from that date and according

to law they are not entitled to possess the land uncondi-

tionally. 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 pecul-

iar and it could hardly be expected that such plea would

have been taken in the very beginning. The course of liti-

gation in these cases has not run along

786

easy and smooth channels: on the contrary its course has

been extremely tortuous and disturbed frequently by con-

flicting decisions. No one could have reason-ably antici-

pated in the beginning that the litigation would be pro-

tracted 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 oversubtle

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 Calcut-

ta. 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 certifi-

cate

787

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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.

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.

Maharaja Ranjit Singh(1).

(2) That the said munafa should have been assessed on a

fair share of the profits from the land.

The second batch of appeals (Nos. 75 to 92 of 1951)

arises out of 18 suits instituted in the court of the Munsif

of Rampurhat on 22nd December, 1909, by Ganpat Singh and

Narpat Singh, predecessors in interest of respondents 1 to 3

against the predecessor in interest of the appellant, late

Raja Ranjit Singh Bahadur, and also some other persons who

were tenants under him, for a declaration of the plaintiffs'

title to the resumed chowkidari chakran lands and for khas

possession of the same and for mesne profits. The allega-

tions in these suits were the same as in the first set of

suits. The defence to the suits was also the same. The suits

were decreed by the trial Judge on 30th September, 1910, in

the following terms :-

"The plaintiffs' title is declared to the lands in suit

and they will get khas possession of the same by ejecting

the tenant defendants; on condition of paying

(1) (1918) 27 C.L.J. 532.

788

to the defendant No. 1 an additional rent, to be deter

mined on the principle that the original patni rent should

bear the same ratio to the patni rent now payable by the

plaintiffs as the original Hustbood at the time of the

creation of the patni should bear to the present increased

Hustbood, or any other fair and equitable rent which may be

determined at the time of assessing the mesne profits.

The plaintiffs will get Wasilat from defendant No. 1 up

to the date of delivery of possession of the land in suit

to them. The amount will be determined in a separate

enquiry."

The District Judge on appeal remanded the cases for

determination of the conditions and terms under which the

patnidar was to hold the lands under the zamindar and

directed ascertainment of profits. The plaintiffs ob-

tained delivery of possession of the lands in the mean-

while on 23rd November, 1910. Against the remand order

appeals were preferred to the High Court and the High

Court decreed the appeals in these terms :-

"We set aside the portion of the decision of the Dis-

trict Judge which remands the cases to the original court

to determine the conditions under which the patnidar is

to hold the lands under the zamindar. Rest of the remand

order will stand. That portion of the Munsif's decree,

which imposes on the appellant, as a condition of obtain-

ing khas possession, the payment of additional rent to the

zamindar will be set aside."

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Against these decrees appeals were preferred to His

Majesty in Council by special leave. The Privy Council

set aside the decrees of the High Court and observed as

follows :-

"Their Lordships, therefore, see no reason for inter

fering with the long series of authorities commencing as

far back as the year 1900, which have established the

right of the zamindar to have an additional rent fixed

for such lands nor can their Lordships overlook the fact

that in the cases already referred before this Board no

exception was taken by the patnidar to the

789

fixing of such rents as a condition of being put into pos-

session."

On 8th December, 1922, the plaintiffs filed applications

in these suits for ascertainment of mesne profits for the

years 1906 to 1910. Objections were taken on behalf of the

defendant on the 17th April, 1923, and it was contended that

the plaintiffs may be allowed mesne profits to the extent of

the amount that would be found due after deduction of the

amount of rent to which the defendant was entitled in re-

spect of the lands in suit according to the judgment of the

munsif. On the 28th May, 1927, another application was

filed by the zamindar claiming deduction by way of equitable

set-off of the amounts due to him for rent from 1910

onwards and on account of subsequent payment made by him

towards revenue and cesses. After a prolonged enquiry the

munsif ultimately on the 18th December, 1937, decreed the

plaintiff's claim for mesne profits after allowing deduc-

tions for the amounts claimed by the defendant up to the

date of delivery of possession. He held that the appellant

was not entitled to get any amount by way of equitable set-

off in respect of sums of money spent by him in payment of

revenue and cesses or for the amount of munafa or profits

for the period subsequent to the date of delivery of posses-

sion. The District Judge on appeal by his judgment dated the

16th December, 1938, allowed the claim of equitable set-off

for the period subsequent to delivery of possession and

directed that "from the plaintiffs dues, the dues of the

defendant are to be deducted and if after these deduc-

tions any sum is due to the plaintiffs they will get a

decree for that sum. If it is found on calculations in some

cases that the dues of the defendant exceed the dues of the

plaintiffs, in such cases the prayer of the plaintiffs for

mesne profits must be dismissed." Against this decision

special appeals were preferred to the High Court and by the

judgment under appeal the decision of the trial court was

restored. Applications were then made for leave to appeal to

His Majesty in Council and

790

those were allowed and a certificate was granted for pre-

ferring those appeals.. Because of the abolition of the

jurisdiction of the Privy Council those appeals are now

before us for decision.

The points for decision in all these appeals are the

following :--

1. Whether the appellant is entitled to deduct by way of

equitable set-off from the amount of mesne profits the

amounts due to him on account of rent, revenue and cesses

for the period subsequent to the dates of delivery of pos-

session.

2. Whether interest should be allowed on the amount of

mesne profits found due, and if so, at what rate.

3. Whether the rent due to the appellant from the

patnidar on those funds should be calculated on the basis of

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annual assets of the land (as in Radhacharan v. Maharaja

Ranjit Singh (1), or on a fair and equitable basis.

The claim for set-off for the period for which mesne

profits were claimed has been allowed and is not in these

appeals.

As regards the amounts due to the appellant by way of rent

subsequent to the date of transfer of possession, the claim

is unconnected with the subjectmatter of the different

suits. It seems clear that a plea in the nature of equita-

ble set-off is not available when the cross-demands do not

arise out of the same transaction. Mesne profits due to the

plaintiff relate to the period during which the appellant

was in wrongful possession of the lands and the amounts

claimed by the defendant relate tO a period when he was no

longer in possession and had ceased to be a trespasser. No

mesne profits are claimable for that period. The right of

the appellant to recover additional rents from the plaintiff

arises out of a different cause of action and independently

of the claim for mesne profits. If the patnidar after

having entered into possession had defaulted in the payment

of the

(1) (1918)27 C.L J. 532,

791

additional rents due for any period, nothing stood in the

way of the appellant from recovering the. in by appropriate

legal proceedings. The prolongation of the enquiry for

ascertainment of the mesne profits cannot support a claim

for equitable set-off for the period subsequent to the

delivery of possession to the plaintiff.

It is obvious that no claim for equitable set-off

against mesne profits during the pendency of the suits could

be made for the sums deduction of which is now sought, as

the amounts had not then accrued due and his right to them

had not yet arisen. The learned District Judge was in error

in holding that the appellant's claim for equitable set-off

was in the nature of a cross-demand arising out of the same

transaction and connected in its nature and circumstances.

He failed to appreciate that the transaction which led to

plaintiff's demand resulted from the defendant's wrongful

act as a trespasser, while the transaction giving rise to

the appellant's demand arises out of the relationship of

landlord and tenant and the obligations resulting therefrom.

A wrongdoer who has wrongfully withheld moneys belonging to

another cannot invoke any principles of equity in his favour

and seek to deduct therefrom the amounts that during this

period have fallen due to him. There is nothing improper or

unjust in telling the wrongdoer to undo his wrong, and not

to take advantage of it. Such a person cannot be helped on

any principles of equity to recover amounts for the recovery

of which he could have taken action in due course of law and

which for some unexplained reason he failed to take and

which claim may have by now become barred by limitation.

It was contended that it was only after the decree of

the Privy Council that the appellant's rights to the addi-

tional rent was finally established and till then no legal

steps could be taken to enforce this demand. The contention

is without force. The appellant's right to additional rent

had been established by the decree of the trial court in

execution of which possession passed from him to the patni-

dar. The Privy

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792

Council only affirmed this.decision. The patnidars

under the decree were entitled to possession of the lands

conditional on payment of the additional rent due for the

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period they had been out of possession. That condition

having been fulfilled (by adjustment of the appellant's

claim against the mesne profits), the decree must be held

to have been satisfied, thus completely settling the cross-

demands. The landlord's demand for subsequent rents has to

be enforced in the ordinary way in the civil court if any

default has been committed in the payment of these rents.

This claim cannot for ever remain linked with the demand for

mesne profits for any anterior period. The result is that

the decision of the High Court on this point is maintained.

On the question of future interest payable on the

decretal amount, the learned District Judge observed as

follows :--

"I may state, however, at this stage that if I were to

rule out the fact that I am allowing the claim of the appel-

lant for equitable set-off, I would have allowed interest to

the plaintiffs at the uniform rate of 4 per cent. per annum

throughout, i.e., from the beginning of the Washilat period

up to date. As I am allowing the prayer for equitable set-

off, I am of opinion, however, that interest at the usual

rate at 6 per cent. per annum should be granted for the

whole of this period."

The High Court disallowed equitable set-off but yet

maintained this decision. When the claim for equitable

set-off is being disallowed, there is no justification for

allowing future interest at the rate of more than four per

cent. for such a long period, particularly in a case where

the plaintiff himself has not been prompt in getting, the

amount of mesne profits ascertained. The plaintiff did not

even ask for an enquiry into this question for a period of

about twelve years. Taking into consideration all the

circumstances of the case we think that future interest

should not have been allowed to the plaintiff in the several

suits at a higher rate than four per cent. on the amount

decreed in the various Suits by way of mesne profits.

793

The appellant's last contention that the munafa (rent)

should not be calculated on the principle laid down in

Radhacharan v. Maharaja Ranjit Singh (1) but should have

been assessed on a fair share of the profits of the land has

no substance because the claim was not made in the grounds

of appeal to the Privy Council and was not even mentioned in

the additional grounds of appeal. It was for the first time

made before us at the hearing and we see no valid grounds

for entertaining it at this late stage. Moreover, it seems

to us that the claim has no substance in the absence of any

evidence about the proportion the original patni rent bore

to the revenue and cesses.

For the reasons given above all these appeals fail

except to the extent that the decree of the High Court is

modified in that the amounts decreed by way of mesne profits

in the various suits will bear interest at the rate of four

per cent. instead of six per cent. The parties will bear

their own costs in all these appeals.

Appeals dismissed.

Agent for the appellant in Civil Appeals No. 62 to

74 and 75 to 92: P.K. Bose.

Agent for respondent No. 1 in Civil Appeals Nos. 68

to 74: Ganpat Rai.

Agent for the respondents Nos. 1 to 3 in Civil

Appeals Nos. 75 to 92: Sukumar Ghose.