Special Appeal from a decree passed by the Judge of Fast Burdwan, affirming that of the Moonsiff of Raneegunge.
The plaintiffs were patnidars of a certain mouzah, and they sued the defendants who hold as dar-patnidars to recover arrears of rent of 1284 and 1283. The defendants stated that nineteen beegahs had been taken up for railway lines and claimed to be entitled to an abatement on that ground. The Moonsiff decreed the plaintiff's claim, on the ground that the kabuliat given by the defendants precluded them, by its terms, from claiming an abatement on any ground whatever. The defendant appealed to the District Court, the judgment of which is as follows: “The clause in the kabuliat upon which the Moonsiff has decided against the applicants is—‘I will make no objection and bring no suit in respect of any item of inundation, drought, diluvion, covering by sand, ??? excavation, unculturable, fallow, lost land, &c.’ I think land taken up for public purposes and paid for by Government cannot come within this category, which enumerates the different modes by which a landlord's rent may be reduced in consequence of loss or injury to the land. Here there was neither loss nor injury, but a compulsory sale; and if the patnidar had received the price of the land taken for the railway, either in a lump sum, or partly in remission of his rent, I think it would be impossible to say that the above clause of the kabuliat could be so construed as to enable him to keep this price, and continue to take rent for the land so paid for. There is, however, another point in which the appellant must fail, and that is limitation. The land was taken up for the railway more than twenty-four years ago. If the defendants had sued for abatement, they would have been barred by section 27 of Act VIII. (B.C) of 1869, or, if that section do not apply to a suit for abatement of rent by a patnidar, by cl. 118, sch. 2 of Act IX of 1871. They were before sued for rent and did not set up the defence of abatement. I think that under these circumstances they cannot, after such a lapse of time, be allowed to succeed on this plea.” The defendants then brought this special appeal.
Mr. M.L Sandel, for Appellants.
Baboo Rash Behary Ghose, for Respondents.
The judgment of the Court (1) was delivered by
Garth, C.J:— We think that these appeals should be dismissed, though not quite upon the ground which has been relied upon by the District Judge. The provisions of the Limitation Act do not in terms apply to defendants; and we are certainly not prepared to lay down as a general rule that a defendant cannot set up a right by way of defence which he would be precluded by the Limitation Act from setting up as a plaintiff by way of substantive claim.
But Courts of Equity are constantly in the habit of applying the doctrine of presumption in cases to which the statutes of limitation do not in terms extend; and we think that this is just one of those instances in which a conclusive presumption ought to be made against the defendant's plea. It appears that twenty-four years have elapsed since the land was taken by the railway company. The defendants' predecessors, and the defendants themselves, have all that time continued to pay the old rent, though fully aware of the circumstances of which they now seek to take advantage; and it is remarkable that they made no attempt to enforce their ground of abatement, until their landlord's interest was represented by a minor, who would, of course, be ignorant of what took place at the time when the railway was made. It is very possible that, in consequence of the railway, the land may have increased in value, or that some arrangements then took place between landlord and tenant, the evidence of which at this distance of time may not be forthcoming.
The father of the present defendants survived some years after the railway was made. He took no steps to obtain an abatement of the rent, or to give up his tenure; and no explanation whatever has been offered on the part of the defendants of their not having claimed any abatement until the present suit was brought. We think, therefore, that we ought to presume conclusively against the truth of the attempted defence, and we dismiss the appeals with costs.