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TMI Blog1952 (4) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... chowkidari chakran lands within the plaintiffs 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 section 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of the plaintiffs title to the resumed chowkidari chakran lands and for khas possession of the same and for mesne profits. The allegations 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 to the defendant No. 1 an additional rent to be determined on the principle that the original 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 determined in a separate enquiry. 6. The District Judge on appeal remanded the cases for determination of the conditions and terms under which the patnidar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitable 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 possession. 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 deductions 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 those were allowed and a certificate was granted for preferring those appeals. Because of the abolition of the jurisdiction of the Privy Council those appeals are now before us for decision. 9. The points for decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and connected in its nature and circumstances. He failed to appreciate that the transaction which led to plaintiffs 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 some unexplained reason he failed to take and which claim may have by now become barred by limitation. 13. It was contended that it was only after the decree of the Privy Council that the appellant's rights to the additional rent was finally established and till then no legal steps could be taken to enforce this demand. The contention is without force. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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