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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 103 792     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.