9911796707
TMI Blog1928 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. The Government then took khas possession of the accretions, and in the Record-of-Eights the plaintiffs are recorded as the tenants of the separate diarah mahals Nos. 13618, 13116, which had been formed out of the accreted lands. Thereafter five certificates under the Public Demands Recovery Act (3 of 1913) were issued and notices were served upon the plaintiffs for the recovery of arrears of rent and cesses alleged to be due from them as tenants of these diarah mahals under the Government. The plaintiffs under protest paid the amounts demanded under the certificates on 28th October, 1920, 26th March 1922 and 31st January 1924. On 21st July 1924 the plaintiffs brought the present suits for a declaration that they are not liable for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the certificate debtor to pay the public demand thereunder can be challenged is by resorting to the machinery provided in the Act. 4. The general rule is that an affirmative statute giving a new right does not of itself and of necessity destroy a previously existing right. But it has that effect if the apparent intention of the legislature is that the two rights should not exist together : per Lord Granworth, L.C., in O'Flaherty v. Mc. Dowell [1857] 6 H.L.C. 142 Whether the new remedy is exclusive or cumulative in each case will depend upon the true construction of the statute tinder consideration. 5. Now it is to be observed that in Section 37 the legislature, when limiting the common law right of the subject to seek relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction, and are not entitled to the protection given by the Act in cases where the sale is authorized, although it may be attended with some irregularity or illegality : ibid p. 842, Mutsaddi Mians v. Mahamed Idris A.I.R. 1915 P.C. 177: Mahomed Jan v. Gunga Bishun [1911] 38 Cal. 537. 6. The issue to be determined, therefore, is whether the arrears and cesses in suit were due from the plaintiffs at the time when the certificates wore issued. The defendant's second contention is that under Sections 104(J) and 111A, Ben. Ten. Act, the plaintiffs are precluded from asserting in the present suits that they are not liable as tenants to pay the rent settled and cesses in respect of the two diarah mahals as they have failed to challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment could compel them to take settlement of the accreted lands even against their will is to advance a proposition opposed to good sense and justice, and for which, I apprehend, there is no justification in law. In the present case it is not pretended that the plaintiffs have taken possession of the lands in suit, or that they have entered into any agreement to take statement of the lands from Government, and, in my opinion, at the time when the certificates were issued there was no public demand due from the plaintiffs; the certificates were ultra vires the certificate officer, and all the proceedings founded upon the certificates were null and void. 10. I am of opinion that the plaintiffs are entitled to the declarations for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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