Manmohan Das and ors Vs Bahauddin and ors - Citation 463499 - Court Judgment

Judgment:

Brij Mohan Lall, J.

1. This and the connected First Appeal No. 435 of 1943 are defendants' appeals arising out of the same judgment and decree of the learned Civil Judge of Allahabad. This appeal was preferred by nine appellants some of whom have died during its pendency and have since been substituted by their legal representatives. Mr. Gopinath Kunzru who preferred the appeal on behalf of all the 9 appellants informs us that he has instructions to argue this appeal on behalf of two appellants only, viz. Abdul Kadir appellant No. 4 and Manmohan Das who was appellant No. 1 and who after his death is now represented by his legal representatives. So far as other appellants are concerned the appeal shall have to be dismissed for default. If may be pointed out at this stage that every appellant has a separate interest and that separate and distinct reliefs have been sought by the respondents against everyone of them.

2. Connected Appeal No. 435 of 1943 has been preferred by Rakhal Das Bose whose interests are identical with those of respondents Nos. 11 to 13 of that appeal. That appeal has been pressed by Mr. Aqiq Hasan, on behalf of the aforesaid persons.

3. The facts are long and complicated but we are concerned in these appeals with only three sets of appellants. I will narrate only such facts as relate to their parts of the case.

4. There is an old and respectable family of Sheikhs at Mau Aima in the district of Allahabad. It owned considerable property in a large number, of villages. On 4-2-1897 most of the members of the family executed an arbitration agreement by which they appointed, three persons, viz. Syed Fariduddin Ahmad, a retired Civil Judge, Syed Evaz Ali, a retired Deputy Collector and one Sheikh Shamsuddin Vakil as arbitrators to partition the family property. A period of two months was fixed for the making of the award but the arbitrators could not finish their work within that period. It was feared that the award delivered after the prescribed period would be invalid. The original executants of the arbitration agreement, therefore, executed a fresh arbitration agreement in terms of the old one on 1-6-1897. Within two months of this date i.e. on 26-7-1897 the award was delivered. It was duly registered. A suit (No. 36 of 1888) was instituted in the Court of the Civil Judge of Allahabad to make this award a rule of the Court and a decree was obtained in terms thereof on 30-6-1893.

5. In order to appreciate the terms of the award, so far as they are material for the purposes of these appeals, it is necessary to reproduce a portion of a very big genealogical table relating to this family. It is as under-

ZAHIRUDDIN,D. 1871

= Smt. BADRUNNISSA

________________|_______________

| | |

Fakhruddin Ziaullah Smt. Tahira Bibi

= Sharfuddin

____________________________________________

| | | |

Alauddin Bahauddin Mohammad Smt. Hidayat

Zakaria Unnissa.

6. The arbitrators held that every item of property was owned by the entire family and it was immaterial in whose name it had been acquired. Treating the entire property as sixteen annas they divided it into three parts which were described as under:--

The assets of Amanullah 0-3-3'' '' of Mubarakullah 0-9-4'' '' of Smt. Zainab Bibi 0-3-4

7. Zahiruddin, the common ancestor in the table reproduced above, had died long before the arbitration agreement was executed. The arbitrators assessed the share which he owned in the entire family property in his life time as follows:--

271/2 sihams out of 288 sihams in Mubarak Uilah's assests.

10 pies out of Amarmllah's share.

They did not allot any share to Smt. Tahira's children in the family assets but they held that they (Smt. Tahira's children and their descendants)would be paid generation after generation the following sums:

Bahauddin ... Rs. 214 per annum.Alauddin ... Rs. 214 per annum.Mohammad Zakaira ... Rs. 214 per annum.Smt. Hidayatunnissa ... Rs. 108 per annum.----------Total Rs. 750 per annum.

This allowance was termed in the award as ulufa. This was made a charge 'on the assets of Zahir-ud-din' which expression, as will appear hereafter, has been judicially interpreted to mean the share of Ziaullah. Both parties are reconciled to this interpretation. The charge was to subsist in whomsoever's possession the property might pass. It was also declared by the arbitrators that there would be no liability on the persons entitled to ulufa to contribute towards the family debt.

8. On 15-5-1901 another arbitration agreement was executed and one Maulvi Rahmatullah was appointed an arbitrator with the object of separating the shares of the different members of the family. It will be noticed that the first set of arbitrators had only determined the shares but had not divided the property. Maulvi Rahmatullah delivered his award on 13-9-1901. It was not registered. He allotted to Ziaullah the property which is detailed in Schedule A of the plaint in the present suit.

9. The respondent's case is that by the doctrine of substituted security the charge which had been created on Ziaullah's share began, after separation, to operate on the property detailed in list A.

10. Ziaullah died in 1902. One-sixth share in his assets devolved by inheritance on his mother, Smt. Badrunnissa. The rest of the property was taken by his widow, Smt. Aulla Bibi, and his two daughters, Smt. Habibunnissa and Smt. Zakrunnissa. There were some residuaries also but it is the common case of the parties that they did not take any share in the inheritance. On 24-11-1902 Smt. Badrunnissa made a will bequeathing one-third of this one-sixth share to her three grandsons viz. Bahuddin, Alauddin and Mohammad Zakaria.

11. In 1903 a suit (No. 336 of 1903) was instituted by the persons entitled to ulufa to enforce that right. The legal representatives of Ziaullah and the persons to whom some of the assets of Ziaullah had been transferred were impleaded as defendants. Neither Manmohan Das nor anyone of his ancestors was a party to this litigation because none had acquired any interest in the disputed property till then. It may be pointed out that one Ramcharan was a defendant to that suit but he was a person different from R.B. Lala Ramcharan Das, the grandfather of Manmohan Das. For the same reason, Abdul Kadir and Rekhal Das Bose were also no parties to that litigation. But all those in whom the property which is now owned by these appellants was then vested were impleaded as defendants.

12. The Court held that the charge subsisted, as already stated, on Ziauliah's share only. It further held that since Bahauddin, Alauddin and Mohammad Zakaria had by virtue of Smt. Badrunnissa's will become owners of one-eighteenth share in the property charged with ulufa the integrity of the charge had been broken and the charge could be enforced to the extent of 17/18th share only. Another finding recorded by it was that, as a result of the integrity having been broken, each defendant was liable to pay the proportionate share of his liability and no joint decree could be passed against all of them.

13. I entertain serious doubts about the accuracy of these findings. The charge had been created 'on the assets of Zahiruddin.' By confining it to Ziauliah's share the learned civil Judge unjustifiably released from charge the share inherited by Smt. Badrunnissa from Zahiruddin. Again, it may be pointed out that Smt. Hidayatunnissa who was also one of the charge-holders had not acquired any interest in the property charged with ulufa. In order that integrity of the charge be broken it is necessary that all the charge-holders should acquire some interest in the property charged. But in spite of these inaccuracies the decision is binding between the parties and it was submitted to buy all of them. This decree was put into execution and the property of villages Gadhna and Chhatoni Khas were put to auction and sold. The decree was thus satisfied.

14. In 1907 another suit (No. 336 of 1907) was instituted for the recovery of ulufa. This time the plaintiffs were the three sons of Smt. Tahira viz. Bahauddin, Alluddin and Mohammad Zakaria. They made their sister Smt. Hidayatunnisa a pro forma defendant. In pursuance of the decision in the previous suit of 1903 they claimed 17/18th share of the ulufa due to them under the award. The share of ulufa money recoverable from each defendant was separately specified and the charge was sought to be enforced against the share of Ziaullah only. In short, they accepted the legal position as defined by the decree of 1903.

15. Manmohan Das, his father Madho Prasad and his grand-father, R.B. Ramcharan Das, were impleaded as defendants. They had by that time acquired mortgagee rights in some of the properties originally held by Ziaullah. They had not acquired any proprietary interest till then. They made no defence. The suit was decreed.

16. In 1911 a third suit (No. 11 of 1911) was brought for the recovery of ulufa for the period commencing from 1-7-1907 and ending with 30th June 1910. The plaint was drafted on the same lines as in the suit of 1907. The plaintiffs were Behauddm Aluddin and the legal representatives of Mohammad Zakaria. The latter had died by this time. Smt. Hidayatunnissa was again impleaded as a pro forma defendant. Manmohan Das his father and grandfather and Rekhal Das Bose were impleaded as defendants to the suit.

17. From the material on the record it does not appear what defence Rekhal Das Bose put forward in that case. His written statement is not before us. Manmohan Das and his ancestors filed a written statement on 28-6-1911. They owned mortgagee rights during the period for which ulufa was claimed but they had, after the expiry of that period and before riling the written statement, acquired proprietary rights in villages Sarai Alam and Chhatoni Khas. They denied the existence and the validity of the charge and contended that since they had not been in possession of any property during the period to which the suit related no decree could be passed against them. This suit remained pending for about three years and ultimately it was withdrawn on 23-7-1914 with liberty to sue again on the same cause of action. Thereafter the present suit was instituted on 28-5-1935 i.e. about 21 years later. It is common ground between the parties that nothing was paid by the defendants or their predecessors to the respondents during this period on account of ulufa.

18. Various pleas were taken in defence in the present suit. So far as Manmohan Das is concerned, he pleaded that he was a bona fide purchaser for consideration without notice of the charge, that the claim was time-barred, and that the property.of villages Gadhan and Chhatoni Khas which had once been gold in execution of the charge could not be resold. He denied the existence and the validity of the charge and contended that some of the property which had come to his possession had been sold by the legal representatives of Ziaullah in payment of earlier debts. It was also pleaded that the property in his possession did not form part of Ziaullah's assets.

19. Abdul Kadir also filed a written statement and took certain pleas of which only one has been pressed before us viz, that he was a bona fide transferee for consideration without notice of the respondents' charge.

20. Rekhal Das Bose and his companions also filed written statements and the pleas pressed on their behalf are that the suit is time barred and that they are bona fide transferees for consideration without notice of the charge. The learned civil judge overruled all these pleas and decreed the suit. Hence these two appeals.

21. Before examining the various questions that arise in these appeals it is advisable to examine the decree in suit No. 36 of 1898 passed in terms of award and to determine (1) whether it creates a charge and (2) whether the charge is one to which Section 100, T. P. Act, applies. The first question was the subject-matter of issue No. 6 in suit No. 336 of 1903. It was decided in that case that a charge had been created and that the property allotted to Ziaullah's share was liable to be sold in enforcement of the charge. The respondents in the present suit represent the plaintiffs of that suit and the persons through whom the appellants have derived title to the property now owned by them were impleaded as defendants to that suit.

The result, therefore, is that the finding arrived at in that suit viz. that a valid charge had been created is res judicata between the parties. This finding must hold good notwithstanding the fact that Maulvi Rahmatullah's award was not registered or that the charge was declared by the first award on the 'assets of Zahiruddin'. A decision even on a question of law operates as res Judicata between the parties. In this connection a references may be made to the case of Bindeshwari Charan Singh v. Bageshwari Charan Singh . In that case a grant of Rs. 1300/- as maintenance had been made to a certain person but under the law it was necessary to secure the Commissioner's permission to validate that grant.

A suit was instituted by the grantee after a lapse of certain time to claim a sum of Rs. 4000/-as maintenance, A question arose as to whether the grant of Rs. 1300/- was validly made. It was held that the grant had been 'legally valid'. The plaintiffs' maintenance allowance was fixed at Rs. 400/-. Acting on that decree a fresh grant of Rs. 2700/- was made in. favour of the grantee so as to complete the sum of Rs. 4000/-. In a later suit between the same parties it was held that it was not open to the parties to reagitate the question that the grant was invalid because the Commissioner's permission had not been obtained. It was held that once the court had decided, rightly or wrongly, that the grant was valid, the decision had become binding between the parties. Applying the same principle to the facts of this case, it follows that the decision of the learned civil judge in suit No. 336 of 1903, viz. that a valid charge had been created, binds the parties.

22. Another case on the point is reported in Bishambar Nath v. Muhammad Ubaldullah Khan ILR 43 All 581: (AIR 1923 All 586) (B). In thatcase a question had arisen in a previous litigationbetween the same parties as to whether a certaindocument was a mortgage by conditional sale or a sale with a condition to repurchase. In a subsequent litigation the previous decision about theinterpretation of the document was held to do binding.

23. Again in the case of Kublal v. Gulzari Lal : AIR1927All297 a Division Bench of this Court held that even an erroneous decision on an issue of law could become the basis of a plea of res judicata. Another decision is to be found in the case of Nabi Muhammad v. Jwala Prasad ILR 27 All 148 (D). In that case a Munsif had held that he had no jurisdiction to entertain a certain execution application. That decision be-came final. Subsequently a fresh execution application was presented before him and it was held that the previous decision operated as the res judicata.

24. The learned counsel for the appellants has. however, relied on several cases which it is necessary to discuss. In the first place, he cited the case of Broken Hill Proprietary Co. Ltd. v. Municipal Council of Broken Hill 1926 App Cas 94 (E). That was a case which went up to the Privy Council from Australia. In that case the court had to determine 'unimproved capital value' of a mine for rating purposes.

During the years 1919, 1920 and 1921 the mine had worked for 205 days only for two reason's, viz. (1) strikes were going on and (2) that the price which the ore, obtainable from the mine, could fetch was very low. The court in assessing the aforesaid value adopted the method of treating it as equal to 20 per cent, of the average annual saleable value of the ore. On a subsequent occasion the court had again to assess the 'unimproved capital value' of the mine. One party insisted that the same method of calculation should be adopted. Their Lordships of the Privy Council held that the 'respondents are given several alternative methods of ascertaining the unimproved capital value' by Section 153 of the Local Act. They held that the method adopted for calculating the value during those abnormal years was not necessarily the method to be adopted in, subsequent years. They went on to observe as follows:

'The decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question, namely, the valuation for a different year and the liability for that year.'

This case is clearly distinguishable. The liability for taxation for every particular year varies from year to year according to the valuation of that year. Their Lordships, therefore, adopted different standards for different years. But this case has no application to the facts of the present case and is no authority for drawing the conclusion that the finding declaring a valid charge in the suit, of 1907 does not operate as res judicata in the present case.

25. Another case cited by the learned counsel for the appellants was that of Chamanlal v. Bapubhai ILR 22 Bom 669 (F). In that case the plaintiff had claimed arrears of his share of certain Government allowance in a previous litigation which had taken place during the continuance of Limitation Act (XIV of 1859) or Act IX of 1871. In that suit it was held that the claim was governed by 12 years' Rule of Limitation. After the coming into force of the Limitation Act (XV of 1877) they brought another suit and claimed that theycould demand 12 years' maintenance. It was held that the decision under the former Act was not enforceable after the passing of the new Act and the question of limitation was not res judicata. This case is clearly distinguishable.

26. Another case relied on by the learned counsel for the appellants was that of Manoharlal v. Baldeo Singh : AIR1927All505 In that case a suit had been brought by one of the several cosharers for arrears of rent. Section 194, Agra Tenancy Act (II of 1901), provided that one cosharer could maintain a suit in two circumstances only viz. that he had been appointed an agent on behalf of the other cosharers or there was a special contract or custom entitling the cosharer to sue separately for his share. No plea was taken by the defendant to the effect that the plaintiff alone could not sue and the suit was decreed. When he sued again a few years later for his own share of rent, a plea was taken to the effect that the suit was not maintainable by virtue of section 194 of the Agra Tenancy Act.

He replied by saying that since he had on a previous occasion obtained a decree in a suit instituted by him alone, the defendant was debarred from reagitating this point. This contention was not allowed to prevail. The reason is obvious. In the year to which the former suit related there might have been a special contract between the cosharers or the plaintiff might have been appointed as an agent to maintain the suit on behalf of his cosharers. This decision was good on its own facts and is no authority for the general proposition that a previous decision on a question of law cannot operate as res judicata.

27. Lastly, the learned counsel for the appellant cited the case of Santosh Kumar Das v. Nripendra Kumar Roy, AIR 1949 Cal 430 (FB) (H). It was held there that an abstract question of law dissociated from and unconnected with the rights claimed or denied as between the parties to the litigation is Pf no importance or value to them or to the decision of the case itself and cannot be said to be substantially in issue and the principles of res judicata cannot apply.

This case also is clearly distinguishable. The respondents do not want any decision on an abstract question Of law dissociated from facts to be treated as res judicata. What they contend is that on the facts of the present case the decision of the civil judge in suit no. 336 of 1907 declaring the charge to be valid operates as res judicata.

28. I am therefore of opinion that the decision does operate as res Judicata and that a valid charge does exist in favour of the respondent.

29. Coming to the second point viz., whether this charge is one to which Section 100, T. P. Act, applies one finds that the said section has been made applicable to cases where the charge is created 'by act of parties or operation of law.'' Ordinarily a decree of a court which creates a charge after contest by the defendants does not amount to 'an act of parties or operation of law.' This was held by a Full Bench of this Court in Mahesh Prasad v. Mundar. : AIR1951All141 , but the same authority goes on to say that if the decree is passed on the basis of a compromise or is passed on an award, it does amount to an 'act of parties'. The decree in suit No. 36 of 1898 was passed on the basis of an award. It was therefore 'an act of parties' and the provisions of Section 100, T. P. Act, do apply to this decree.

30. The next point to determine is whether the aforesaid decree which constitutes the foundation of respondents' claim simply declares the respondents' rights or whether it is an executabledecree. The relevant portion of the arbitrator'saward is in the following terms :

'The entire estate of Zahiruddin was allotted to Ziaullah. Out of the entire estate of Zahiruddin Alauddin shall get Rs. 214/-, Bahauddin Rs. 214/-, Mohammad Zakaria Rs. 214/- and Smt. Hidayatunnissa Rs. 108/-, generation after generation by instalments and the same shall be a charge on the estate of Zahiruddin, no matter it goes on into the possession of any person in any way.'

Decree in suit No. 36 of 1898 which is based thereon is also in similar terms. It will be noticed that the decree simply declares the ulufa to be a charge on the property but it does not direct the sale of the property in enforcement of that claim. It is, therefore a declaratory decree for the enforcement of which a suit will have to be instituted and not a decree which is executable by itself.

The respondents have throughout treated the decree as a declaratory decree and they sued upon this decree in 1903, 1907, and 1911 and again they instituted the present suit on the basis of that decree. In 1903 and 1907 the decrees for sale of property charged with ulufa were passed in such suits. It is therefore, res judicata between the parties that the decree in suit No. 36 of 1898 is not an executable decree but a declaratory decree.

31. Three results will follow from this conclusion. In the first place, question of notice will now assume importance. Had the decree itself directed the sale of the property it would, not have been open to the appellants who are transferees from persons who were parties to that decree to plead want of notice. But since the decree is not an executable decree, want of notice can be pleaded. This was laid down in the aforesaid Full Bench decision in : AIR1951All141 . The second result which follows from the above conclusion is that the transferees will not be subject to the doctrine of lis pendens.

Had the decree been executable by itself all transferees whether with or without notice of the charge would have been subject to the doctrine of lis pendens. But this result will not arise because the decree has been held to be a merely declaratory decree. This is also laid down in the aforesaid Full Bench ruling.

32. The third result will be that in the caseof an executable decree certain instalments mightbecome time barred by reason of Article 182 (7), Limitation Act, but the whole decree cannot be extinguished. But when the decree is a declaratorydecree only and a suit has to be instituted oh itsbasis, it is possible that the right of suit maybecome barred and the original decree No. 36 of1898 declaring the charge may thus be extinguished as against the defendants against whom theright of suit has become time barred.

As a matter of fact this argument has been placed by the learned counsel for the appellants in the forefront of his case. He contends that a suit to establish the respondents' right to claim ulufa on the. basis of the aforesaid decree, if brought on the day on which the present suit was instituted, would have been time-barred and therefore the right to recover payment is also extinguished.

33. There is a difference so far as the question of limitation is concerned, between a suit to establish a periodically recurring right and a suit to recover payment on the basis of that right. A suit of former description is governed by Article 131 whether the right is charged on any property or not. The language of the article viz. 'to establish a periodically recurring right' is comprehensiveenough to include both classes of cases. But a suit to recover payment is governed by various other articles. If it is a suit for arrears of rent Article 110 will apply. If it is a suit to recover payment on the basis of a registered agreement, Article 116 will apply. If it relates to wages, not otherwise expressly provided by the Schedule, Article 102 will apply. If it is a suit to enforce payment of money charged upon immoveable property, Article 132 will apply. Different periods have been laiddown in different articles.

34. The distinction between a suit to establish a periodically recurring right and a suit to recover payment on the basis of that right has been recognised in a number of cases. This Court recognised this distinction in the case of Lachhmi Narain v. Turabunnissa, ILR 34 All 246 (J). Same view was taken by the. Patna High Court in the cases of Baidyanath Jiu v. Har Dutt Dwari, AIR1926 Pat 205 (K), Padhumlal v. Tribeni Singh, AIR 1934 Pat 44 (L) and Ramji Das v. Mabamaya Prasad Singh, AIR 1936 Pat 168 (M). Bombay High Court has also taken the same view in Janardan Trimbak v. Dinkar Hari : AIR1931Bom189 . To the same effect is the decision of the Punjab High Court in Charanjit Singh v. Amir Ali Khan, AIR 1921 Lah 121 (2) (O). The erstwhile Chief Court of Punjab had also taken the same view in Dost Mohammad Khan v. Sohan Singh, 83 Pun Ro 1906 p. 303 (P). The Madras High Court has, however, taken a different view in Chinna Thambiar v. Rama Iyer : AIR1936Mad704 .

It was held that a suit for recovery of an annual allowance is governed by Article 131. To the same effect is the decision of Madras High Court reported in Zamorin of Calicut v. Achutha Menon. ILR 38 Mad 916: (AIR 1914 Mad 377) (R). With all respect to the learned Judges I find myself unable to subscribe to this view. To my mind there is a world of difference between a suit to establish a right and a suit to recover payment on the basis of that right. To make Article 131 applicable the suit should be to establish 'a periodically recurring right.' The period of limitation begins to run when the plaintiff is first refused the enjoyment of the right.

The expression 'refused the enjoyment of the right' not only implies the denial of right to the person entitled thereto but also connotes that intimation of denial is communicated to the person entitled to the right. The refusal should be by a person whose interest would be affected if the property is sold in enforcement of the charge. If the refusal is made by someone who is not interested m the charge, that refusal would not give a start to the period of limitation. In the case of Narendra Singhji v. Udesinghji, AIR 1947 Bom 451 (S) the plaintiff had to obtain a certificate under section 6 of the Pensions Act from the Government before he could bring a suit for a share of his allowance against the defendant.

The Government twice rejected his petition for such a certificate but ultimately granted the certificate. It was then that he sued the defendant, The suit was instituted more than 12 years after the dismissal of his first application for the certificate by the Government. It was held that the denial by Government would not give a start to the period of limitation. The suit was directed against the defendant and it was the defendants' denial which gave a start to the period of limitation.

The conclusion, to be drawn from this case is that if a person totally unconnected with theclaim denies the plaintiff's right to get his claim established, the period of limitation does not be-gin to run against the plaintiff but if someonewhose interests are effected by the enforcement of that right makes a denial, the limitation will begin to run. It is possible to conceive of a case where there may be a number of persons interested in denying the plaintiff's right, some of whom may make a denial while others may not. As against those who have made the denial the limitation will start to run.

The criterion, therefore, is whether the denial has been made by a person whose rights will be affected. If a decree is sought by the plaintiff to establish his claim in a case of a charge, the persons interested in the denial are the owners of the property, the mortgagees whose interest would be affected if the charge is enforced as a prior encumbrance and also any other person who may be in possession. In the present case I have to consider particularly the position of the mortgagees because as will appear hereinafter, Manmohan Das was a mortgagee of some of the properties although he was not in possession of all of them.

The question is whether his denial would give a start to the period of limitation. He was interested in denying the mortgage. Had the charge been enforced and the property sold in enforcement of the charge, Manmohan Das's subsequent mortgages would have disappeared and the Purchaser would have obtained the property free from all the encumbrances created by subsequent acts in favour of Manmohan Das. Therefore, Manmohan Das's interests were affected by the enforcement of the charge and he was a person interested in resisting a claim for establishment' of the appellants' right.

35. A clear demand had been made by the respondents in the plaint of 1911. The denial by Manmohan Das and his ancestors was contained in the written statement in very categorical terms. Since as a result of pleas taken in the written statement, the suit was withdrawn with liberty to bring a fresh suit on the same cause of action, it can safely be presumed that the contents of the written statement including the fact of denial came to the notice of the plaintiffs. It can also be presumed that, in the circumstances of the case, Smt. Hidayatunnissa, who was one of the charge-holders but who happened to be arrayed as a defendant, also came to know of the denial.

36. It is common ground between the parties and the case has been argued before us on that assumption that not a pie has been paid by Manmohan Das and his ancestors since then. Therefore the limitation began to run from the date of the written statement i.e.. 28-6-1911 against all chargeholders, including Smt. Hidayatunnissa,

37. Learned counsel for the respondent drew our attention to paragraph 25 of the written statement filed by Manmohan Das in the suit of 1911 and pointed out that Manmohan Das had denied his possession during the period to which that suit, related. I have pointed out above that Manmohan Das had not acquired proprietary rights in any property during the period to which that suit related i.e. from 1-7-1907 to 304-1910 but ha had acquired proprietary rights before filing the written statement.

His plea, which was to the effect that ha should not be held liable because he had not purchased the property during the period in suit, did not mean that he either as a mortgagee or as an owner was not interested in denying the respondents' right. As a matter of fact, he had emphatically denied such a right and he objected to the property being sold in enforcement of 'the said right. I am of opinion that there is nothing in paragraph 25 of the written statement which precludes Manmohan Das from raising a plea of limitation.

38. It was next contended by the learned counsel for the respondents on the basis of two Madras decisions in the cases of Ghulam Ghouse Khan v. Jannia, AIR 1920 Mad 447(1) (T), and Kaliammal Ammal v. R. Shanmuga Rajeswara Sethupati. : AIR1945Mad20 , that the suit to establish the charge on the basis of ulufa would be a suit to establish a perpetual right and not a periodically recurring right. According to the view taken by the Madras High Court on which he takes his stand, Article 131 will not apply.

The said decisions lay down that in such cases Article 120 applies. It will thus appear that these authorities do not help the learned counsel for the respondents who cited them. On the other hand, they operate to his detriment inasmuch as a suit for establishment of his right will, in accordance with the view taken in these cases, becomes time-barred in six years under Article 120, instead of after 12 years under Article 131.

39. In the circumstances, I am of the opinion that if on the date on which the respondents instituted the present suit, they had brought a suit to establish their right to claim ulufa that suit would have been time-barred. But this finding is subject to this remark that the suit would have been time barred qua those properties only in respect of which refusal had been made I shall have to consider hereafter each property separately in order to determine whether or not refusal had been made in respect of it. For the present suffice it to hold that the suit would have been time barred qua such of them in respect of which the refusal had been made.

40. Next comes the second step in the argument viz., if a suit for establishing a right is barred, the suit for recovery of money is also barred. The contention put forward by the learned counsel for the respondents is that Article 132 contemplates a suit for recovery and if a claim is brought for a period within 12 years the suit would be within time. In other words, he maintains that if, even after refusal by the appellants and non-receipt of ulufa by the respondents for a period of 100 years, the chargeholders choose to bring a suit for 12 years saying that they forego the Ulufa ton the first 88 years but claim it for the last 12 years, the suit will be within time.

This is not a correct proposition of law. There are numerous authorities which support the contention that if a suit to get the right established becomes time-barred, the claimant of that right cannot be permitted to circumvent the law by bringing a suit for recovery of money as distinguished from a suit for establishment of that right. An important decision on the subject is to be found in the case of Hakim Hidayat Ullan v. Gokul Chand : AIR1937All57 .

In that case the plaintiff had sued the defendant for recovery of parjot (ground rent) for a period of three years. The findings recorded by the courts below were that the plaintiff had been demanding the parjot from the defendant for 14 or 15 years and that the latter had been constantly refusing to make payment. The plaintiff's suit was dismissed. Very important observations were made by Sulaiman, C. J., at p. 60, They are as follows :

'But where the enjoyment of the right had in fact been refused by the defendant more than 12 years before the suit, and the plaintiff brings a suit for recovery of arrears, then (1) if he asks expressly for a relief for the establishment of his periodically recurring right, the relief cannot be granted as it is barred by time and (2) if he doesnot ask for such a relief in express terms then (a) it may be assumed that inasmuch as the establishment of the right is a condition precedent, for the granting of the relief for recovery of arrears, such a claim is necessarily implied in the suit and the suit is in substance one for establishing a periodically recurring right coupled with the recovery of the arrears which is a necessary consequence of such right.

In such an event when the right itself cannot be established after the lapse of 12 years from the refusal of the enjoyment of the right, no decree for arrears can be passed; Or (b) at any rate, where the plaint is so worded as altogether to omit all references to the establishment of the right and the plaintiff deliberately refrains from asserting that there is any such right, then if the right is not admitted the suit should fail on the ground that the plaintiff had not alleged and therefore should not be allowed to prove the existence of such a right. But in no case where the refusal of the enjoyment of the right was more than 12 years before the suit and the claim for the establishment of the recurring right would be barred by time, can the plaintiff succeed in recovering the arrears of rent against the defendant where the claim is disputed.'

Earlier his Lordship remarked at p. 59 as follows :

'It seems to me that a plaintiff cannot be allowed to evade the provisions of Article 131 by merely not asking for an express relief for a declaration of right. A plaintiff is not entitled to recover arrears of rent without in the first place-establishing his right to recover it, if such right is denied. Therefore, where such a right is denied, a claim for recovery of rent necessarily involves as a condition precedent the establishment of the plaintiff's right to recover rent, irrespective of the question whether an express relief for such a declaration is asked for or not.

If a suit brought for the establishment of the plaintiff's right would be barred by time, then by merely not asking for such a relief the plaintiff cannot evade the law of limitation and recover the amount due.'

41. The Patna High Court has also taken the same view in the case of Ram, Ranbijaya Prasad Singh v. Madho Prasad Singh, AIR, 1947 Pat 47 (W). That was a suit for arrears of maintenance. Fazl Ali. C. J., pointed out in his judgment that the defendant's father had repudiated the plaintiffs' claim to the maintenance allowance and the suit to recover that amount was instituted 22 years after the repudiation. It was, therefore, held that since a suit to establish the right to recover maintenance, if instituted, would have been time-barred, the plaintiffs could not be permitted to circumvent the law of limitation by framing a relief for recovery of money and by omitting to sue for the establishment of their right.

Fazl Ali C. J., quoted with approval the case of Guzan Lal v. Sm. Parbati Bari, 8 Cal WN cxcii at p. cxcii (X), where it was held that the denial of the plaintiff's right to receive maintenance by the defendant and the cessation to pay the maintenance did constitute an entirely new condition destructive of the condition which had been established by the previous decree and did afford to the plaintiff a new and fresh cause of action upon which she was bound to bring a suit either to establish her right to receive maintenance or to recover arrears of maintenance within six or twelve years as the case might be, from the date of the accrual of the cause of action. Since this was not done, the right to recover maintenance was held to be time-barred. To the same effectare the decisions in Abdul Ahad v. Hari Kishun, AIR 1941 Pat 201 (Y), and Raoji v. Bala, ILR 15 Bom 135 (Z).

42. It is true that the respondents had obtained decrees in 1903 and 1907 which amounted to recognition of their right to claim ulufa and those decrees having been obtained against the appellants' predecessor could operate as res judicata, provided the suit was within twelve years of the denial of the right, The learned counsel for the respondents relied on this aspect of the law of res judicata and contended that since their right had twice been established it was not necessary for the respondents to sue again for declaration of their right.

But this contention is not sound. The plea of res judicata means this much only that on the day of decision of the former suit the rights of the parties were as determined by that judgment. But the rights are not immortal and are capable of being destroyed by events which may subsequently happen. A very common instance is that of a plaintiff suing to recover possession of some property which is in the possession of a trespasser and obtaining a decree thereon followed by delivery of possession.

Suppose the defendant trespasser again dispossesses the plaintiff. If the plaintiff were to sue him again within twelve years, the previous decision will operate as res judicata. But if the plain-tiff sleeps over his right for over twelve years, the right which was determined in his favour by the previous judgment (which was res judicata between the parties) will be extinguished by reason of the defendant's adverse possession. Therefore when Man Mohan Das denied the respondent's right the latter could institute a suit within twelve years of the denial and if that had been done the previous decisions would have operated as res judicata.

But after the expiry of the period of limitation the plea of res judicata will be of no help to the respondents. It may be pointed out that in the case of 8 Cal WN cxcii (X), also there were previous decisions in favour of the plaintiff but they did not stand in the way of the plea of limitation being upheld.

43. The learned counsel for the respondents cited the case of Mohammad Mumtaz Ali Khan v. Mohan Singh, AIR 1923 PC 118 (Z1). That was a case totally different from the present one. The material portion of their Lordships' judgment appears on page 121 where they remark as follows :

'They are unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a title as an under-proprietor to the land.' In the case before their Lordships, as will appear from the remarks above quoted, the defendant had entered into possession as tenant and therefore it was held he was precluded from asserting his adverse title unless he surrendered possession to the plaintiff, This does not apply to Man Mohan Das. He had not entered into possession as tenant or in any manner in which he was precluded from asserting his adverse title. I am, therefore, of the opinion that since the respondents did not bring a suit to establish their right within twelve years of the denial thereof by Man Mohan Das, their right has been extinguished in respect of the property for which denial was made.

44. This leads me to examine each property and to see whether or not a denial had been made in respect thereof. But before doing so it is necessary to dispose of another argument advanced by the respondents' learned counsel. He points out that in schedule (d) of the plaint in suit No. 11 of 1911 the respondents had specified the amount recoverable from each property and had also mentioned the names of persons who owned each item of property.

Since Man Mohan Das and his predecessors did not own any such property during the period to which the suit related, their names were not mentioned in the said schedule. It is therefore argued that no demand was made from Man Mohan Das and his predecessors and therefore denial by them was meaningless. This argument is not sound. Demand had been made for the sale of the property mentioned in the schedule by enforcing the charge. Man Mohan Das and his predecessors who were the mortgagees of several items of property had a real interest in making the denial.

45. Coming to individual items, the villages of Chhatauna Khas and Sarai Alam may be taken up first. They had been purchased by Man Mohan Das before he filed the written statement in the 1911 case. In other words, they had been purchased before the denial was made. In respect of them the claim is obviously time-barred.

46. Next comes village Gadna, tWO defences, have been set up in respect of this village, The whole of this Village is now owned by Man Mohan Das. It is pointed out on his behalf that Ziaullah's share in this village was sold in execution of decree No. 336 of 1903 obtained on the basis of this very charge and was purchased by one Srimati Badrunnissa who, it may be pointed out, is not to be confused with the lady of the same name who happened to be Ziaullah's mother. She is a different lady being the wife of one Maulvi Abdul Hamid.

The argument is that since Ziaullah's share has been sold in enforcement of the charge the property became free from encumbrance and the charge cannot be enforced against it again. It is urged that under section 100 of the Transfer or Property Act the provisions which apply to a simple mortgage apply, so far as may be, to a charge also. On this analogy it is argued that, if a property is sold in enforcement of a simple mortgage, it passes into the hands of the purchaser free from the burden of that mortgage.

The answer to this argument is that all provisions relating to a simple mortgage do not necessarily apply to a charge. They apply only 'so far as may be'. If there were a charge enforceable on a single occasion the property, when sold in enforcement thereof, will pass unencumbered into the hands of the purchaser. But different considerations arise when a charge is of a recurring nature.

The point came up for decision in the case of Jnanendra Nath Roy v. Sasi Mukhi Debya, : AIR1940Cal60 , where it was held that in the case of a recurring charge, even though the charged property might be sold in execution of a decree for arrears payable in respect of the sum charged, the liability in respect of future payments would ordinarily remain after the sale and would not be extinguished by the sale of the charged property in satisfaction of a decree for arrears which might have already accrued, and that in such a case the charge would not be extinguished by the sale and, as a charge is attached to the property charged, the auction-purchaser would ordinarily get the purchased property subject to the charge. To the same effect is the decision in Matlub Hasan v. Mt Kalawati : AIR1933All934 .

47. Whenever a property is made subject to acharge of a recurring nature, it is generally worthmuch more than the amount payable in one instalment of the charge. If it is sold in enforcement of one or more instalments of the charge it is always likely to fetch a much higher price than the amount of the decree. The purchaser's remedy, if he wishes to protect himself against future payments is to request the court to proceed under section 57 of the Transfer of Property Act and to lock up a capital sum out of the sale proceeds for the payment of the recurring instalments of the charge and to release the balance to him.

Unless he takes such a step the charge must remain attached to the property and must be enforced against it in the hands of any one who happens to be, for the time being, possessed of it, irrespective of the fact that on previous occasions it had been sold in enforcement of the same charge. Therefore, I overrule the appellants' contention, viz., that, since village Gadna had been sold in execution of the charge in the decree of 1903, it is no longer saleable.

48. There is, however, a second contention out forward on behalf of the appellants in respect of this property. The heirs of Ziaullah had transferred the property by means of several deeds and it had come ultimately in the hands of one Najmul Huda who on 7-5-1907 mortgaged the entire village to Rai Bahadur Lala Ram Charan Das, the grandfather of Man Mohan Das. On the date of filling the written statement in the suit of 1911 Man Mohan Das was the simple mortgagee of this property and, in that capacity, he had denied the existence of the charge.

I have held above that that denial is sufficient and it gave a start to the running of the period of limitation. Since the suit was not instituted within twelve years, the right to enforce the charge is extinguished against this village. (His Lordship proceeded to consider claims against individual villages and concluded.)

49. The result, therefore, is that the appeal is allowed in part and the decree of the Court below is modified. The respondents' suit shall stand dismissed against the legal representatives of Man Mohan Das in respect of the properties of villages Gadna, Akhaipur, Yasinpur Abdalpur, Sarai Alam, Chhatauna and Tikri. The decree of the court below, in so far as it relates to village Kursand, shall stand and to that extent the respondents' suit shall stand decreed against Man Mohan Das's legal representatives. The portion of the decree, in so far as it relates to Abdul Qadir's share, is affirmed. The appeal, so far as it concerns the original appellants, viz., Srimati Munni Bibi, Ram Nath, Asharfi Lal (now substituted by his legal representatives) Sheikh Mumammad (now substituted by his legal representative) Srimati Taiyabunnissa, Muniruddin and Zahiruddin, is dismissed for default. The respondents shall get their costs from the appellants (or their legal representatives) whose appeal has been dismissed. Man Mohan Das's legal representatives shall get costs proportionate to their success from the respondents.

50. First Appeal No. 435 of 1943 is dismissed with costs.

Nasir Ullah Beg, J.

51. The facts of this case have beenset out in the judgment of my learnedbrother. It is not, therefore, necessary for me to recapitulate them in my judgment. Regarding First Appeal No. 435 of 1943, I am of opinion that this appeal should be dismissed with costs for the reasons given by my learned brother with which I agree; As to First Appeal No. 304 of 1943. I agree with my learned brother that the decisions in the previous suits would operate as res judicata in the present case, that Section 100, T.P. Act would apply to the charge sought to be enforced in this case, that the plea of the defendant, appellants that they are bona fide purchasers for value without notice has no substance, that the decree under which the charge on the property was created in respect of alufa was not a declaratory decree but an executable decree and that the appeal filed by Srimati Munni Bibi, Ram Nath, Abdul Qadir, Asharafi Lal, Sh. Mohammad, Mst. Tyabunnissa. Munir Uddin and Nazir Ahmad should be dismissed. As to appeal filed by L Manmohan Das alias Bachcha Ji defendant No. 1 who died during the pendency of the appeal and is now represented by his legal representatives, my learned brother is of opinion that his appeal should be partly allowed on the ground of limitation. As I was assailed with serious doubts on this matter, I deferred my judgment and took time to further consider the matter. After giving my anxious and prolonged consideration to all aspects of the case, I find myself in the unfortunate position of having to partially disagree with my learned brother.

52. The right claimed by the plaintiffs in the present case is described as alufa or malikana in various documents. So far as defendant No. 1 is concerned, it is sought to be enforced against seven properties which are alleged to be in his possession, These seven properties are: (1) Tikri, (2) Khursand. (3) Gadhna (4) Akhaipur, (5) Yasinpur Abdalpur (6) Chattauni and (7) Sarai Alam.

53. The discussion on the merits of the appeal will, therefore, relate to these seven properties only and defendant No. 1 will hereafter be described as the 'appellant' or the 'defendant-appellant' which terms would also include his legal representatives who became appellants after his death. So far as Tikri is concerned, I agree with my learned brother for the reasons given by him that it is not proved in the present case that the property in possession of the defendant appellant appertained to the share of Zia Ullah. The charge is sought to be enforced against the share of Zia Uriah only. In this view of the matter Tikri will have to be exempted from the charge re-gardless of the question of limitation. It is, therefore not necessary to discuss the question of limitation in respect of village Tikri, As to the property mentioned above at No. 2, namely Khursand the plea of limitation based on Article 131 of the Limitation Act could not be pressed seriously on behalf of the appellant in view of the fact that this village came in the ownership of the appellants subsequent to the suit of 1911. My learned brother has also held that the plea of limitation-would fail with regard to this village. I agree with my learned brother on this point, and, for the reasons given by him, I would hold that the plea of limitation cannot be sustained so far as Khursand is concerned.

54. In my opinion, however, the question of limitation arises seriously in respect of the remaining five properties, namely, Gadhna, Akhaipur, Yasinpur Abdalpur, Chhatauni and Sarai Alam. The article of the Limitation Act which is relied on by the defendant-appellant is Article 131. The plea of limitation raised by the defendant appellant is founded upon two documents, namely,the plaint and the written statement filed in Suit No. 11 of 1911. The plaint filed in that suit viz. Ext. D, dated 26-1-1911 is relied on as a demand and the written statement filed on behalf of the defendant No. 1 in the present suit who was defendant No. 21 in that suit viz. Ext. B-1, dated the 23th June, 1911, is relied on as a refusal within the terms of Article 131, Limitation Act.

55. The first question therefore that arises in the present case is whether these two documents would constitute a proper demand and refusal as contemplated by Article 131, Limitation Act. For this purpose it will be necessary to analyse in some detail the plaint and the written statement of that suit with a view to ascertain whether the said plaint and written statement would constitute a demand and refusal so as to set limitation running against the charge-holders.

56. At the very outset, it is important to note that Mst. Hidayatunnisa, who was plaintiff No. 2 in the plaint filed in the present case was not a plaintiff at all in Suit No. 11 of 1911. In fact she was defendant No. 1 in that suit. I find it difficult to understand how a demand can be said to have been made by her when she was not a plaintiff at all in the suit, and how the enjoyment of the right claimed in the suit can be said to be refused against her when she was herself arrayed as a defendant in the said suit. Moreover, the right claimed is a joint and indivisible one as will be shown later. The plea of adverse possession in order to be successful must be such as to result in complete. exclusion. If the exclusion or refusal was only partial and one of the parties jointly holding the right was not excluded from enjoyment nor was its enjoyment in respect of the said party the plea of adverse possession in regard to the right cannot be said to have been sufficiently made out.

57. Further, even so far as plaintiffs other than Hidayatunnissa are concerned, a perusal of the plaint Ex. D to my mind clearly indicates that there was no demand at all from the defendant-appellant in respect of Alufa or malikana claimed in that suit. The claim to malikana inthat suit related to the period from the 30th June 1907 to 30th Juno 1910, and it was stated in paragraph 13 of the plaint that 'the plaintiffs are entitled to get Rs. 642/- annually with interest thereon at the rate of -/8/- per cent. per mensem, after deduction of 1/18th share in the proportionate amount due by them in respect of the share regarding which a will has been made, from the property in possession of the defendants mentioned in Column No. 12 of List (d) aforesaid'. Now a reference to Column No. 12 of List (d) would show that the appellant in the present appeal nor his predecessors were mentioned therein as the persons who were in possession of any of the properties from which Alufa was claimed, and, for that reason, the realisation of Alufa was not at all sought from them. In fact, being not in possession of the property, the Alufa could not be claimed from them. They were impleaded merely as parties who were interested in the property in the capacity of simple mortgagees and not as persons liable to pay the Alufa or as persons in possession of the property from which realisation of Alufa was sought to be enforced. This is furtherclarified by paragraph 18 (a) of the relief clause which stated that:

'The defendants may be ordered to pay to the plaintiffs Rs. 2,000/4/-, the entire amount of principal and interest within the period to be fixed by the court in proportion to their rights in the zamindari as recorded against Column 12 of List (d) as the property of the defendants'.

Column 12 of List (d) did not contain the name of the present defendant appellants or his predecessors. Under these circumstances it is quite clear that the said plaint cannot be said to be a demand of Alufa from the appellant in this appeal. In fact in paragraph 25 of their written statement, the defendant-appellant himself alleged that he was not in possession of any of the alleged properties for the period in respect of which the Alufa was claimed and therefore, he could not be liable in respect of it. It is, therefore, amply clear that the defendant or his predecessors were liable to pay the Alufa claimed in that suit and that the said Alufa was neither demanded from them nor could it be demanded from them.

58. The defendants no doubt denied the liability to pay the Alufa, but in view of the fact that no demand was made from them, the refusal by a party which is not sought to be made liable at all is not, in my opinion, the kind of refusal contemplated by Article 131 of the Limitation Act. It is significant that under Article 131, Column 3 of the Limitation Act the period begins to run 'when the plaintiff is first refused the enjoyment of right'. Therefore, it is obvious that the person refusing the demand must be the person capable of defeating compliance with the demand which is made. There is no evidence at all that any of the parties from whom the demand was made refused the enjoyment of the right claimed by the plaintiffs of that suit. If the other defendants of that suit from whom the demand was made admitted the plaintiffs' demand in that case, it would be difficult to hold that the limitation would still begin to run merely because a party from whom no demand was made and which was not liable to pay chose to deny liability in respect of a claim made from other parties who were liable.

59. So far as the three villages, namely, Gadhna, Akhaipur and Yasinpur Abdalpur are concerned, the defendants Nos. 19, 20 and 21 of that suit who are represented by the appellants in this appeal were merely simple mortgagees of these villages. They were not in possession of the said villages even on the date of the refusal. All that can be said is that they were interested in the property on that date. It has been argued on behalf of the appellants that the mere fact that a person's right is likely to be affected by the decree is sufficient to set statute of limitation running in his favour. I am, however, of opinion that the test in such cases is not whether the right of the person refusing is affected but whether the right of the person claiming the amount is affected. The reason for it is obvious. No per. son is bound to bring a suit unless his rights are affected by a refusal. The fact that the defendants' rights are likely to be affected would not entitle the plaintiffs to bring a suit. What would, entitle the plaintiffs to bring a suit would be the fact that their own rights are affected by the refusal. The plaintiffs' right could not be affected by refusal of their demand by the defendants Nos. 19, 20 and 21 of that suit in respect of three villages as they were simple mortgagees in respect of them and being not in possession were not liable to pay the alufa. So far as the remaining two villages, namely, Chhatauni and Sarai Alam are concerned, the said defendants were also admittedly not in possession of them during the period for which the demand was made so the said defendants' refusal would not affect at all the realisation of the arrears claimed by the plaintiffs. In any case the plaintiff's demand could not be affected because they could have got the entire property sought to be made liable sold to enforcetheir demand and could have realised the amount claimed from it in spite of the refusal by the defendants. In other words, in my opinion, the refusal contemplated in Article 131 is by a person sought to be made liable and not by the person who is not sought to be made liable and who could not be liable. The view that the refusal by any person interested in the property would set the statute running would, in my opinion, lead to several difficulties. Thus, presuming for a moment that the other defendants from whom Alufa was claimed admitted the plaintiffs' rights and were prepared to pay it and did pay it, would the plaintiffs be still bound to bring a suit because a person holding a subsidiary interest and whose denial did not affect his claim chose to deny it. The acceptance of this position would result in a good deal of confusion. Thus, for example, there might be a large number of persons interested in the property, e.g. mortgagees, sub-mortgagees, mortgagees of sub-mortgagees, persons who have easement rights, other charge-holders, sharers under the same charge and so on. The number of such persons in the case of large properties might run into hundreds. If a charge-holder is held to be bound to bring a suit the moment his right is denied by anyone of them in spite of the fact that the holder of the property who is the owner of it and as such liable to pay it admits his right and is prepared to pay it or has been paying it, then the easiest way of harassing the charge-holder would be for any interested person to deny his right and to compel him to bring a suit, or, in the alternative, to suffer the penalty of having his right barred by limitation. If all of them chose to deny his right, the charge-holder would have to bring hundreds of suits although his own right is not affected by such denial and he is in fact receiving payment of his dues from the party liable. This appears to be a very unreasonable interpretation. The more reasonable interpretation, therefore, is that it is only when a person liable to pay refuses to comply with the demand that the plaintiff is bound to bring a suit. Further, this interpretation is also supported by the words of Column 3 of Article 131 itself which make it amply clear that the person refusing must be the person capable of excluding the plaintiffs from enjoyment, of the right claimed for such a person alone is capable of exercising an act of adverse possession. In other words, the refusal in order to entail the heavy penalty of the complete loss of right to a party must be an effective refusal and not an ineffective one. The latter kind of refusal can be safely ignored.

60. There is also ample authority for the proposition that in order to set statute running under Article 131, Limitation Act, so as to compel a plaintiff to bring a suit, it is necessary that there should be the clearest possible evidence both of an express demand by the plaintiff as well as of an unequivocal repudiation amounting to an assertion of adverse interest by the defendant and that the burden of proving both the facts lies heavily on the defendant. Further, one is not bound to bring a declaratory suit unless his own rights arc directly put in jeopardy. Reference to some of the relevant authorities may be made at this stage to clarify the above points.

61. In ILR 15 Bom 136 (Z), it was laid down that in order to set limitation running under Article 131 'Mere absence of enjoyment is. not enough. There must be an express repudiation of the claim. Long exclusion from enjoyment may be an evidentiary fact of great importance in considering the question whether title is proved; butas regards Article 131 of Limitation Act, 1877, ithas no force, unless it is shown that the exclusion is the result of refusal made upon a demand.' (p. 144).

62. In Ramnad Zemindar v. Darasami ILR 7 Mad 341 (Z4) the following observations were made:--

'It is not shown that any demand was made for the payment of the allowance on behalf of the respondent until 1872. It is argued that, because in the suit brought by Kolanthai Nachiar it was pleaded that, the payment ceased to be due on the death of Sivasami, it must be taken that the plea amounted to a refusal of the right of the respondent; but, although it may be allowed that the plea was equivalent to a denial of the right as appertaining to any heir of Sivasami, it was not made in answer to a demand by or on behalf of the respondent, and therefore in our judgment the period of limitation is not to be computed from that period.' (p. 343).

63. In Jagannath Pandiajiar v. Muthia Pillai 14 Mad LJ 477 (Z25) at page 479 it was observed as follows:--

'The article of the Limitation Act applicable is Article 131, but there was no averment or proof on behalf of the defendants that any demand for rent had been made and refused 12 years prior to the date of the suit.'

This ruling would also show that the burden of proving both the demand as well as refusal lies upon the defendant.

64. In Nazar Ali v. Akaji 109 Ind Cas 85 (Nag) (Z6) it was observed that:--

'Mere exclusion from enjoyment does not cause time to run unless the exclusion is the result, of a refusal made upon a demand.' (86).

65. In Ganesh Vinayak v. Sitabai Narayan AIR 1916 Bom 143 (Z 7) the following significant observations were made at page 144:

'In order that such a recurring right should be time-barred, it is necessary for the defendant to show, as we held in a recent case, that there has been a definite demand and refusal. Mere omission on the part of the person having such right to exercise it, will not start a period of adverse possession under Article 131. It is exactly on all fours with an ordinary suit for rent where the landlord has, for many years, made no demand. In all such cases, unless there has been an express repudiation of the landlord's title and an open declaration that the lessee holds adversely in interest to his original lessor, I am not aware that a suit for rent has ever been held time-barred, merely because rent has not been paid over a long period.'

66. In Devendra Narayan Majumdar v. Jhuraw Pramanik AIR 1926 Cal 883 (Z8) it was observed that-

'Limitation under this article does not run until there has been a proper demand and refusal, and mere exclusion from enjoyment does not cause time to run unless there has been refusal as a result of a demand properly made.' (p. 885).

67. In Hem Chandra v. Atual Chandra 19 Cal. WN 386: (AIR 1914 Cal. 32) (Z 9) the learned Judges thus commented on the meaning of the word 'refusal' in Article 131, Limitation Act:

'Now 'refusal' plainly implies a previous demand ILR 15 Bom 135 (Z), Kamman v. Budha Singh 146 Pun Re 1882 p, 443 (Z10), Durga v. Bhonatu 106 Pun Re 1883 page 331 (211) and Gahna v. Ikhlas Khan 154 Pun Re 1889 at p. 513 (Z12). As the plaintiffs assert that there has been no demand and refusal within twelve years of the commencement of the present suit, the burden is cast upon the defendants to establish thatthe plaintiffs did make a demand and that the defendants did refuse. Of this, there is no evidence. Consequently the suit is prima facie not barred under Article 131 (pp. 387 and 388 of Cal WN): (at p. 34 of AIR.)

68. In Kripa Ram v. Jai Chand 23 Ind Cas 445: (AIR 1914 Lah 242) (Z13), the learned Judge repelled the plea of limitation under Article 131, Limitation Act, holding that they were clearly of opinion that 'there is on the record no clear proof of a definite demand made by the plaintiff from the defendants and of their refusal to. concede to the plaintiff the enjoyment of his right.' 447 (of Ind Cas): (at p. 244 of AIR).

69. To the same effect are cases reported in 154 Pun Re 1889 p. 513 (Z12), Umra v. Jiwan Singh. 164 Pun Re 1882 at P- 443 ( Z 14) and Ban-garayya Gam v. Jagannatha Raju, 5 Ind Cas 615 (Mad) (Z15).

70. With regard to the argument on behalf of the appellants that the plaintiffs were bound to bring a suit for declaration because the defendants' rights were affected, it may be observed that no one is bound to bring a suit, to protect the right of another party. If the defendants' rights were affected, it might give a cause of action to the defendants to bring a declaratory suit, but I find it difficult to understand as to why the plaintiffs should be compelled to bring a suit for declaration because the defendants' rights are affected. In this connection, it would be relevant to refer to the weighty observations of Sir John Wallis during the hearing of the Privy Council case reported in Gobind Narayan Singh v. Shamlal Singh to the following effect:--

'Nobody is obliged to bring a declaratory suit. A party does not lose his subsisting right because he does not sue for a declaration.' (p. 526).

71. In a Full Bench case of the Madras High Court reported in Mathu Korakai Chetty v. Madar Ammal ILR 43 Mad 185: (AIR 1920 Mad 1) (Z 17) it was laid down that 'the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature that is to say, by dating the cause of action from a date when the remedy is available to the party.' (p. 213).

72. In Percy p. Fisher v. Ardeshir Hormasji AIR 1935 Bom 213 (Z18) it was observed that---

'The right to sue means the right to claim relief toy legal procedure, that is to say the right to bring the particular suit with reference to which the Plea of limitation is raised. Generally speaking, such a right acquires when the cause of action arises. The cause of action comprises the facts which must necessarily be proved in order to entitle the plaintiff to the relief which he asks for.' (p. 21.5):The plaintiffs could not have asked for the relief of arrears of Alufa claimed in the suit of 1911 from the defendant NOS. 19, 20 and 21 of that suit nor did they ask for it from them. It is, therefore difficult to understand the argument that they were still bound to bring a suit for declaration against them.

73. In connection, with the point that the evidence of demand and refusal should be clear, another subsidiary point may be noted. The plea of refusal from the use of enjoyment of right is in the nature of and analogous to the plea of adverse possession. In fact, in paragraph 31 of the written statement, the defendant appellant him-self has described it as a plea of 'adverse possession'. In view of the fact that the plea itself isin the nature of the plea of adverse possession and the burden of establishing the factum of refusal clearly and beyond any shadow of doubt lies heavily on the defendant, it would be reasonable to hold that before the statute should be made to run against the plaintiffs from the date of refusal by the defendants, the plaintiffs should be proved to have knowledge of the refusal. This would be borne out by the. word used in Article 131, Column 3 of the Limitation Act to the effect that time would start 'when the plaintiff is first refused the enjoyment of the right.' This fact could be proved by the defendants either by proving actual knowledge or by proving circumstances which indicate that the plaintiffs must have had knowledge of the refusal. There is no proof of actual knowledge at, all in the present case. On behalf of the defendant-appellant, however, reliance is placed on presumptive knowledge as indicated by the circumstances. Turning, therefore, to the circumstances of the case, the question that arises is whether they are such as to lead irresistably to the conclusion that the plaintiffs must have had knowledge of the same. I am of opinion that the answer to the question should be given in the negative. It will be remembered in this connection that no demand about the Alufa was made from the defendant in this suit or his predecessors at all. They were merely formal parties. They were not in possession of the property during the period in respect of which the Alufa was claimed. Their demand or denial was quite immaterial for the purposes of the suit so far as the plaintiffs were concerned. The plaintiffs might very well have ignored the contents of the written statement. The Civil Procedure Code does provide that the plaintiff shall file with the plaint as many copies of it or a concise statement of it as there are defendants (Vide Order 7, Rule 9, C.P.C.). It further provides that the summons issued by the court to the defendant shall be accompanied by a copy of the plaint or, if permitted by the court, by a concise statement of the same for service of it on the defendant (Vide Order 5 Rules1 and 2). There is no corresponding provision in respect of the written statement. On the other hand, the filing of a written statement is not at all necessary. It is discretionary with the defendant to file it and unless he is ordered by the court to do so, he need not file it at all (Vide Order 8, Rule 1, C.P.C.). In the Suit No. 11 of 1911, the defendants being formal parties, the filing of the written statement by them could not be considered to be necessary. In the plaint itself no relief was sought against these defendants. Even against the main defendants, the suit was withdrawn with liberty to bring a fresh suit owing to a formal defect in the plaint. Out of the seven plaintiffs in Suit No. 11 of 1911, three of them, namely, Kulsum Bibi. Fatima Bibi and Saira Bibi were minor girls and two, namely, Fakhrunnissa Bibi and Nabiunnissa Bibi were purdahnashin ladies. Circumstantial evidence is, therefore not strong enough to warrant a presumption of presumptive knowledge against the plaintiffs in the present case.

74. On behalf of the defendants-appellants, it is argued that the counsel of the plaintiffs must have had knowledge and the knowledge of the agent must be deemed to be the constructive knowledge of the principal. This argument, however, ignores the fact that the counsel was ah agent only for the purpose of conducting the case in court. He was not an agent for collecting the Alufa or receiving it out of court. His knowledge cannot therefore, be imputed to the plaintiffs. On behalf of the appellants, reliance is placed on Kishori Lal v. Kuber Singh 7 All LJ 937 (Z19) and Rameshwar Singh v. Narendra Nath Das, AIR 1923 Pat 259 (Z20). Both these cases are clearly distinguishable. In both these cases the matter of which knowledge was imputed to the principal lay within the scope of authority of the agent. In other words, agents were shown to have been authorised to act in respect of those matters. In the present case, no power-of-attorney of the counsel is filed, and in the normal course it would extend only to the conduct of suit in court and not to realisation or collection of Alufa. It is also significant to note that in the Limitation Act where the Legislature intended, to extend the application of a provision to a party or its agent, the Act expressly and specifically stated so. Thus, e.g., in Sections 19 and 20 it is stated that limitation might be extended by an acknowdedgment or payment by a party or his 'agent duly authorised in this behalf. Section 21 defines the words 'agent duly authorised in this behalf,' Yet the word used in Article 131 is merely 'plaintiff' and not the words 'plaintiff or his agent duly authorised in this behalf.' The word 'plaintiff' itself has been defined in Section 2 (8) to include his predecessor-in-interest taut the words 'his duly authorised agent' are not mentioned therein.

75. In this connection, it would be relevant to refer to a Division Bench of the Madras High Court reported in Muruga Chetty v. Rajaswamy, 30 Ind Cas 669: AIR 1916 Mad 130 (Z21) in which following previous case of the same Court it was laid down that-

'The cause of action for a declaratory suit, based on denial of title, docs not arise until the plaintiff has knowledge of the denial.'' (head-note p. 669). It was further held that even in the case of denial knowledge on the part of some of the persons jointly entitled to a right would not affect the right of the others. The flag of adverse possession should be so hoisted as to be observed by all. For the above reasons, I am of opinion, that the circumstances of the present case are not sufficient to warrant a conclusion of presumptive knowledge and in the absence of proof of actual knowledge, defendants should be held to have failed to prove either actual or presumptive knowledge of the act of adverse possession. Thus the alleged refusal cannot be said to have been brought home to the plaintiff-respondents.

76. Even, presuming for a moment that there has been a proper demand and refusal, there is still another reason why in the present case the ingredients laid down in Column 3 of Article 131, Limitation Act, cannot be said to have been proved and the limitation of 12 years laid down in Column 2 of Article 131 cannot be said to have been made out. A bare perusal of Column 3 would indicate that a mere denial of right, by the defendant is not enough to set limitation running unless it is accompanied by a complete exclusion of the enjoyment of the right in question for a period of 12 years as laid down in Column 2. It is for this reason that the Legislature has deliberately used the words 'refusal of the enjoyment of the right' and not the denial of the right. These words may be contrasted with the words used in other articles of the Limitation Act; for example Article 129, where the words in Column 3 are 'when the right is denied.' The written statement of the defendants can, at the most, show a denial of the plaintiffs' rights by the defendants. Unless, therefore, it is further proved by the defendants that no Alufa at all was paid to the plaintiffs for a full period of 12 years after the said denial, a bare denial in the written statement is absolutely of no avail,The defendant-appellants have not adduced any evidence to that effect at all. They have not even alleged in their own written statement that there was cessation of payment for a period of 12 years after the denial of the right or for any period. They have merely relied on the statement of another defendant Abdul Qadir who appeared as D.W. 3 and stated that he never gave any Alufa to the plaintiffs. That evidence would not make out the case of the defendant-appellant who should have adduced evidence to prove that neither he not any of nig predecessors paid any Alufa to the plaintiffs or their predecessors in respect of the said properties after the denial of the plaintiffs' rights in 1911. Abdul Qadir himself is defendant No. 10 in the present case, and he has not taken the plea of limitation at all in his defence. His appeal is found to have no substance and has been dismissed. The defendants have further referred to the evidence of Bahauddin to the effect that he had no personal talks with defendant No. 1 or his ancestors about the Alufa: That however, does not mean that the Alufa was not paid to him at all. He has further stated as follows:--

'..... From the papers I gather that defendants had knowledge of the charge of Alufa.on all the property in their possession. I havepersonal knowledge also about it because defendants have paid Alufa to my relations to whom itwas due and promised to pay my dues.'

There is no evidence at all in rebuttal of this evidence. It is also to be noted that in 1911 theAlufa in respect of these very villages was claimednot from the defendants appellants but fromother defendants and the suit was subsequentlywithdrawn. It was thus possible for the other defendants from whom demand was made to havesatisfied the demand subsequently in respect of thevery right that was refused by the defendant-appellants. That might be the reason for notfiling another suit in respect of it That mightalso be the reason why other defendants did notset up the plea of limitation. There is, however,no evidence on the point to indicate that the otherdefendants' from whom the demand was maderefused the enjoyment of the right to the plaintiffs.For aught we know they might have admittedit and might have satisfied the demand or goneon paying the Alufa. It is, however, needless tosurmise on the point because the burden lay onthe defendants to prove all that. They haveadduced no evidence at all. Even if Bahauddinplaintiff had not made any affirmative statementof the receipt of Alufa by his relations, in theabsence of evidence of non-payment by the defendants, the plea of limitation by the defendantswould have failed on the ground of want of evidenceto establish the necessary ingredient of exclusionfrom enjoyment.

77. The main argument of the learned counsel for the appellants on this point was that the burden of proof lay on the plaintiffs and not on the defendants. I am of opinion that the plea being in the nature of adverse possession, as stated by the defendant himself in his written and oral statement, the burden clearly lay on him to establish the ingredient of exclusion from enjoyment. The plaintiff's title having been proved, the suit would be deemed to be within limitation unless the defendant is able to dislodge the presumption by establishing that the said title has been destroyed by adverse possession on his part. On the question of burden I have already referred above to 19 Cal WN 386: (AIR 1914 Cal 32) (Z9), AJR 1916 Bom 143 (Z7) and 14 Mad LJ 477 (Z5), which show thatthe burden of adducing evidence lay on the defendant and in the absence of any such evidence the plea of limitation must fail. Reference may also be made to another case reported in AIR 1934 Pat 44 (L) in which it is laid down where the defendants set up the bar of Article 131, Limitation Act, to de-feat the plaintiffs claim it is clearly 'for the defendants to establish such facts as would show that the action was in fact barred by Limitation.' (pp. 44 and 45). The entire current of authority on this point seems to run counter to the contention of the learned counsel for the appellants. I, therefore, find myself unable to endorse his argument in this regard and have no hesitation in repelling it.

78. In a Division Bench case of the Calcutta High Court reported in Narendra Chandra v. Nalini Sundari Debi 28 Ind Cas 939: (AIR 1915 Cal 550) (222), following a previous case of the same Court it was held:--

'That Article 131, Limitation Act, applies only where there has been a denial of the plaintiff's right to receive the maintenance in question as well as a cessation of payment.' (Head-note 4) There being no evidence of cessation of payment for a continuous period of twelve years after the refusal or of any cessation of payment at all for any period in respect of the right in question, and, in any case, the defendants having completely failed to establish it. I am of opinion that they have not succeeded in establishing their plea of limitation.

79. So far I have discussed the question as to how far the defendant-appellant has failed to prove the ingredients required under Columns 2 and 3 of Article 131, Limitation Act. This would be enough to defeat the plea of limitation based on Article 131. In the present case, however, it is strongly argued on behalf of the plaintiff-respondents that the defendant appellant has further failed to show that the case falls within the ambit of Column 1 of Article 131, Limitation Act, and this is an additional reason why Article 131 of the Act cannot be said to be applicable to the present case at all. On behalf of the plaintiffs-respondents, it is argued that the right claimed by them in the present case is not a 'recurring right' as contemplated in Column 1 of Article 131, but is a perpetual or permanent right created in their favour in lieu of their share in the immovable Property and fortified by a decree of the Court. It may be recalled at this stage that the right in question owes its origin to the allocation of shares of the various heirs of Zahir Uddin in the property left by him. It appears that the ancestors of the plaintiffs possessed considerable amount of properties. The various claimants of the said properties referred their disputes to arbitrators by means of an agreement in the year 1897. The arbitrators gave their award and on the basis of it, a decree was passed in Suit No. 38 of 1898 by the court of Sub-Judge of Allahabad on 30-7-1898. As a result of the said award incorporated in the decree the entire share of Zahiruddin along with the share which had devolved upon his daughter Tahira Bibi was given exclusively to his son, Zia Ullah and in lieu of their shares in the estate, a sum of Rs. 750/- was allowed as malikana to be given annually from generation to generation out of the estate of Zahiruddin to the son and daughter of Tahira Bibi. This amount was made a charge on the share of Zahiruddin which was permanently made liable for payment of the same. The amount was to come out of the property whether it remained in possession of Zia Ullah or passed into the hands of anyone else by virtue or transfer or inheritance or in any other manner. Thesaid liability was fixed as representing the consolidated value of the claim of other sharers in immovable property, The amount was a fixed amount of an invariable nature. It was not liable to alteration or variation under any circumstance and could be claimed by the allottees or their successors-in-interest from generation to generation, from anyone in whose possession the property happened to pass at any time.

80. After the decree was passed in terms of the said award, Zia Ullah along with other members of the family appointed Mauli Rahmat Uilah-Pleader as an arbitrator for partition of the villages belonging to the family. According to the partition made by Maulvi Rahmat Ullah, the property of Zia Ullah liable for payment of the said malikana was specified. This property according to the plaintiffs, is mentioned in the list appended to the plaint and the plaintiffs by virtue of this suit are seeking to enforce the same malikana against the holders of the property who are in possession of the same as transferees or heirs of the original owners. After the two awards, the holders of this malikana sued to enforce their rights in the courts of law twice and obtained decrees for the realisation of their claims against the same immovable property. The first decree was obtained on the 9th September, 1904 in Suit No. 336 of 1903. The second decree was obtained on the 10th March, 1908 in Suit No. 336 of 1907.

81. From the above facts it is clear that the right of the plaintiffs is not a 'recurring right.' On the other hand, it is a perpetual right of a permanent nature. The right is further permanently charged on the immovable property. Further it is not a variable right. The fixed amount has got to be paid yearly irrespective of the question whether the income of that year was high or low. The right itself is a constant one and not dependent upon the amount of income. It is argued for the plaintiffs-respondents that a perpetual or permanent right of such a nature is not a 'recurring right.' The quantum of right and the amount of claim have been fixed once for all and for all time. It cannot be denied that the right in question is a perpetual right. In fact, the learned counsel for the appellants himself argued at the beginning that the right conferred infringed the rule against perpetuities. Under these circumstances it must be held that the right in question is a perpetual right.

82. In this connection on behalf of the plaintiff respondents our attention is drawn to the summary of the law on this point in Obhrai's commentary on Limitation and Prescription under Article 131. Limitation Act, para 1950 at page 1900, Vol. 3 (1936 Edition) which states as follows:--

'1950. PERPETUAL RIGHT.--Article 131, Which relates to periodically recurring rights, has no application to perpetual rights, which are always, there though sums of money are paid periodically as they fall due. 58 Ind Cas 788: 39 Mad LJ 492: (AIR 1920 Mad 447 (1)) (T). The distinction is found in Eshan Chundar Roy v. Monmohini ILR 4 Cal 683 (223) and it was pointed out in 39 Mad LJ 492: 58 Ind Cas 788: 1920 Mad WN 394: 12 Mad LW 100: (AIR 1920 Mad 447 (1)) (T) where the right to receive the Yoemiah allowance payable to a mosquo was held to be a perpetual and not a periodically recurring right.'

83. In AIR 1920 Mad 447 (1) (T) A Bench of the Madras High Court observed as follows:--

'what the plaintiff claims, apart altogether from the claim for a declaration that he is the muttawali is that he is perpetually entitled toreceive all the yeomiah allowances that ever accrued. It seems to us that that is not a periodically recurring right but a perpetual right. The mere fact that sums of money are paid periodically does not make the light one that periodically recurs. The right is always there, but it is onlyexercised at such times as the sums fall due.' (447) It further observed that:'The distinction is not new. It is found in ILR 4 Cal 683 (223) and is very clearly pointed out there.' (447).

In the Calcutta case referred to by the Madras High Court the right was considered to be in thenature of an interest in the immovable property, and as such the right was held to stand on a different footing. In the above case the Madras High Court also referred to their previous Pull Bench case reported in AIR 1914 Mad 377: 38 Mad 916: 23 Ind Cas 806 (R) and held that the observations in that case related to a recurring right. The right being a perpetual one, it was held that the article applicable was Article 120 and not Article 131. It may be noticed that Article 120 was held to apply in that case because there was no other specific article in the Limitation Act applicable for the recovery of the claim made in that suit. In the present case Article 120 would not be applicable as there is a specific Article, namely, Article 131 which would apply to the claim for the recovery of arrears

84. Again, the same distinction was made by the Madras High Court in : AIR1945Mad20 . In this case it was held that:--

'A perpetual right to receive year after year a particular sum of money is not a periodically recurring right. The quantum of the right is there defined once and for all, It is payable every year. In such a case it is a perpetual right and not periodically recurring right. In the case of a periodically recurring right, it must vary according to the circumstances each time it accrues.' (p.20): With reference to the right in question in that case it was observed that:'It is an obligation cast upon the person who is the holder of the property for the time being to pay a fixed sum of Rs. 24-4-0 every year. Casesof this kind where there is an objection to pay a fixed sum are not dependent upon the varying circumstances of each year cannot possibly be said to be a periodically recurring right. I hold, therefore, that Article 131. Limitation Act, has no application to this case.'

The previous Full Bench case in ILR 38 Mad 916: (AIR 1914 Mad 377) (R) was again referred to in this case and it was observed that the Full Bench decision did not affect this position as in the Full Bench case the right claimed was considered to be a recurring right. Reference in this case was made to the Privy Council Case reported in Secy. of State v. Parashram Madhavrao by way of illustration of a recurring right, It was observed that in the Privy Council case the right was a right to recover certain percentage from the collections of certain villages. The right depended upon the income of each year and, being variable, could be described to be a periodically recurring right. In the end Article 120 was held to be applicable as there was no specific Article in the Limitation Act relating to the recovery of arrears due in respect of the right in question in that case.

85. A similar distinction appears to have been made in AIR 1921 Lah 121 (O) in which a right of a constant nature which accrues once for all is distinguished from the right of a recurring nature.

86. In this connection it was further argued on behalf of the plaintiff respondents that the present case is much stronger. The charge created in the present case is in the nature of an interest in the immovable property. The argument was based on the fact that the other heirs of Zahiruddin were really entitled to a share in the immovable property possessed by him and, in lieu of their shares, the arbitrators, instead of giving them a share in the immovable property gave them a malikana. The Malikana granted in the present case was therefore a substitute for their shares in the immovable property. Thus the interest in question in this case being in the nature of immovable property, cannot be said to. be a right of a recurring nature.

87. The proposition that the charge in the present case is in the nature of an interest in immovable property seems to be strongly supported not only by cases of the Allahabad and. Patna High. Courts, but also by a ruling of their Lordships of the Privy Council. These cases may be referred to at this stage

88. In Mt. Sahodra v. Badri Prasad : AIR1929All737 the facts were very similar to the present case. At the time of partition, a village 'X' was given to one co-sharer, and in order to equalise the shares, it was arranged that this co-sharer should pay certain sum from his profits to other co-sharers in lieu of their shares in 'the village. It was further agreed that the sum should be paid by any person whoever was in possession for the time being of village 'X' and the other co-sharers had a right to realise the same from village 'X'. The amount payable was, as in the present case, regarded as Malikana. The interest created was held to be of a perpetual nature. It was held not to create a merely personal liability. It was further held to be not only a mere charge on the profits of the village, but as tantamount to an interest in the immovable property itself.

89. In Churaman v. Balli ILR 9 All 591 (Z 26) an annual charge upon the property and profits arising therefrom was created and the interest carved out was termed as 'Malikana'. The Court held that the interest created was a heritable charge and was of a perpetual nature.

90. In Maharana Fattehsangji Jaswantsangji v. Desai Kullianaraiji Hakoomutraiji 1 Ind App 34 PC (Z 27) their Lordships of the Privy Council had before them a case in which the nature of a hereditary right to realise a sum out of the profits of the immovable property was considered. After referring to a previous decision of their own which was to the same effect their Lordships observed at page 53 as follows:--

'Whatever may have been the origin of the huq. it must be assumed to be now a right to receive an annual payment which has a legal foundation, and of which the enjoyment is hereditary; and that the liability to make the payment is not personal to the Respondent, but one which attaches to the inamdar into whosoever hands the village may pass; or in other words that the huq is payable by the inamdar 'virtute tenurae'. This being so, their Lordships have come to the conclusion that the interest of the huqdar does possess the qualities both of immobility and of indefinite duration, in a degree which, if the question depended on English law, would entitle it to the character of a freehold interest in or issuing out of real property (See 1 Cruise's Digest, p. 47, place, 10); that upon the general principles of construction applicable to an Indian statute it must be held to be 'an interest in immoveable property' within the meaning of Act XIV of 1859.'

At page 52, their Lordships considered the meaning of the word 'immoveable' as used by the. Indian Legislature and observed that this word was 'used as something less technical than 'real' and that the term 'immovable property'' comprehends certainly all that would be real property according to English Law, and possibly more.' Although this question was decided in connection with the Limitation Act. Act XIV of 1859, the situation under the present Limitation Act has been held to be the same as shown by the rulings of the Allahabad High Court mentioned above.

91. A similar distinction is to be found in the English Law also as it would appear from Lightwood's book relating to 'The Time Limit on Actions'. In Chapter I at page 23 of the said book it is stated as follows:--

'The distinction thus established is upon principle clear, and it is justified by the general frame-work of the Acts, Rent, in the sense of rent charge, is a species of property forming an incumbrance on the ownership of land. It is a right to demand from the owner a share of the annual profits of the land. A conventional rent reserved on a lease, on the other hand, is paid to the owner as a return for the occupation and use of the land. In the one case the rent is an Incumbrance on the ownership. In the other it is an incident of the ownership'.

In the present case also it may be noted that the amount is one that is recoverable not by the owner of the immovable property but from the owner of the immovable property. In the other words, it is a right not in favour of the landlord as in the case of an ordinary recurring right, but a permanent right against him.

92. In suits for the recovery of such claims the specific article applicable is Article 132. As stated in Obhrai's 'Limitation and prescription', 1936 Edition, at p. 1896 :

'A special provision for cases of this kind was first made in Act IX of 1871, and annuities, dividends, interest, malikana, or maintenance, or rent would fall within Article 131, where the claim is not of the nature of an interest in land, in which case Article 132 would apply, or where the plaintiff is not claiming specific sums of money claimable by reason of some periodically recurring right in which case Article 62 may come into operation. The article refers to a periodically right, and not to a Similar liability.'

93. Similarly in Rustomji's Law of Limitation. Vol. II (1938 Edition) at page 1127, it is stated that:--

'It is clear, however, that when plaintiff seeks to recover the arrears from the property on which the malikana is charged, Article 132 would apply.'

The fact that there is a specific mention of charge in Article 132 shows that the Legislature did intend to make specific provision for cases in which the amount is charged on the property. One cannot Ignore the fact that whereas the Legislature has made a provision for charges under Article 132 by specifically mentioning the same no such word as 'charge' is mentioned in Article 131.

94. in AIR 1934 Pat 44 (L), it was held that 'a suit to recover malikana is governed by Article 132 where the plaintiff seeks to recover it in respect of an interest in land; and to such a suit, Article 131 does not apply,' It was further held that 'By the non-payment of malikana for a long period of years the malikana interest does not necessarily disappear, (head note (e) ).

95. Similarly in Mukhdeo Singh v. Harakh Narsyan, AIR 1931 Pat. 235 (Z28), it was held that-

'When a suit is brought to enforce payment of money charged upon immovable property the pro-per article to be applied is Article 132, and under this article the question when money sued for becomes due has necessarily to be decided with reference to the terms of each bond.' (head-note (a) ). It was further held that-'The notion of continuing, or successive causes of action is not entirely foreign to the Limitation Act and where therefore a party has recurring or successive causes of action whether under the terms of contract or by operation of law, each cause of action will give a fresh start to the Period of limitation and the mere fact that a party has not availed himself of the earlier cause of action, will not prevent him from availing himself of a later one.'' (head-note (d)).

96. In an Oudh case reported in Deputy Commissioner. Fyzabad v. Jagjiwan Baksh Singh, 33 Ind Cas 461: (AIR 1916 Oudh 129) (Z29), there was a decree of the Settlement Court providing for payment of cash nankar from certain villages which were charged for payment of the same. It was held by the court that such an interest is a benefit arising Out of land and is, therefore, 'immovable property' as defined by Section 3 of Act X of 1897 and at all events, a haq of the nature contemplated by the explanation appended to Article 132, Limitation Act. In this case reliance was placed on two previous cases of the Allahabad High Court reported in Muhammad Zaki v. Chatku, ILR 7 All 120 (Z30), and Kanhia Lal v. Muhammad Husain ILR 5 All 11 (Z31), as well as two previous cases of the Avadh Chief Court reported in Raja Rudra Pratab Sahi v. Sheo Charan, 1 Oudh Cas163 (Z32), and Raja Mohammad Mumtaz Ali Khan v. Wazir Khan, 7 Oudh Cas 108 (233).

97. At this stage it is relevant to take up the objections raised by the learned counsel for the appellants with regard to the above points. It was not argued by the learned counsel that the interest in question is not perpetual. In fact the argument on behalf of the appellants that the interest in question infringed the rule of perpetuity indirectly conceded the point that the interest created was a perpetual one. The argument of the learned counsel for the appellant, however, was that in case the interest is regarded as a perpetual interest. Article 120, Limitation Act, would be applicable.

In this connection, he relied on the above mentioned Madras cases in which Article 120, Limitation Act was applied. This argument clearly ignores the fact that Article 120 was applied in those cases because there was no specific provision in the Limitation Act in respect of the recovery of the claims which were the subject-matter of dispute in those cases. In the Present case, as shown above, there is a specific article applicable for the recovery of such claims, namely, Article 132, Limitation, Act.

Article 120, Limitation Act, being a residuary article can only be applied where there is no specific provision. Article 120 will not, therefore, be applicable in the present case. Learned counsel referred, to . This case only lays down the proposition that where Article 131. Limitation Act, is applicable, Article 120 cannot apply. In other words, it only supports the contention of the respondents' counsel that where there is a specific article applicable to the case, Article 120 does not apply. This case, therefore, far from supporting the appellants' case goes against them.

98. Learned counsel for the appellants also relied on Chhatra Kumari Devi v. Mohan BikramShah . In that case Article120 was applied to a suit by a beneficiary to enforce a trust arising under an agreement. Article 120 was held to be applicable to such a suit because neither Article 144 nor any other article in the Limitation Act was found to be specifically applicable to such a suit. This case also, therefore, does not help the appellant. If, for example in the present case, the amount was not charged on the land and Article 132 was not applicable for that reason and there had been no other article in the Limitation Act which could be applicable, then Article 120 would have been applicable. In this connection, the following observations of Rattigan, J., in a Bench case reported in 83 Pun Re 1906 page 306 at p. 307 (P), are relevant:

'Article 132, which was referred to by Mr. Shaft, is not, we consider, applicable, because the money wrongfully retained by defendant is not charged upon the land, and plaintiff in his plaint did not allege that it was, nor did he ask that it should be decreed to him so charged. It is obviously money due from defendant which he should have paid every year, but which he wrongfully omitted to so pay. Under these circumstances, we must fall back upon Article 120, under which plaintiffs can claim arrears for the period of six years preceding the date of suit, or the sum of Rs. 3,000/-in all.'

99. In ILR 34 All 246 (J), it was held that--

'Article 132 of the first schedule to the Indian Limitation Act is applicable only to suits in which the plaintiff claims to recover money charged upon tmmovable property to raise it out of that property, and not to a claim in which merely personal decree is asked for.' (246)

It was further held that Article 131 which related to a periodically recurring right was altogether in applicable to a suit to recover arrears of payments due under a registered contract.

100. In Punjab Province v. Tara Chand, AIR,. 1947 PC 23 (Z35), it was held that because a specific article, namely, Article 102 was applicable to recover the arrears of pay or salaries. Article 120 was Inapplicable.

101. In Paramasiva Thevar v. Pulukaruppa Thevar, ILR 47 Mad 525: (AIR 1924 Mad 137) (Z36), a Division Bench of the Madras High Court observed as follows :'

'It is a well-known principle of construction that where there is a specific article of limitation applicable to a suit or application, the residuary article should not be applied unless the application or suit cannot be brought within the clear wording of the specific article.' 535 (of ILR Mad): (at p. 140 of AIR).

102. For the above reasons, I am of opinion that the contention of the learned counsel for the appellants that Article 120 would be applicable to the present case should fail.

103. Further it was contended by the learned counsel for the appellants that if the interest in question is regarded as in the nature of immovable property, then Article 144, Limitation Act, would he applicable to the present case and the plaintiffs' suit should be barred by adverse possession. This contention can be disposed of by a short answer to the effect that Article 144 was not pleaded by the defendant at all. Moreover, Article 144 would apply only to a suit for possession of immovable property and not to a suit to enforce payment by sale of the same.

In this connection learned counsel for the appellants placed, reliance on . This case lays down that Article 144 of the Limitation Act is applicable only to a suit for possession by a person claiming to be the owner. The present suit is not for possession. Further, in the present suit the plaintiffs' do not claim to be the owners of the immovable property but merely claim an interest in it. Moreover, the defendants, in the present case, also do not claim ownership of the property by adverse possession against the plaintiffs. Under the circumstances, this ruling far from supporting the appellant's argument goes against them.

104. The next argument of the learned counsel for the appellants was that where a claim for a declaration of a right is barred, the suit for the recovery of arrears by enforcement of that claim would also be barred. He further argued that it is not open to the plaintiffs to evade the bar of limitation by merely omitting to sue for declaration. In this connection the plaintiffs' learned counsel relied on two cases, namely : AIR1937All57 . This argument does not appear to me to be tenable in the present case for three reasons :

(1) The defendants having failed to prove proper demand or refusal as required by Article 131, Limitation Act, it is not necessary for the plaintiffs to bring a suit for declaration under that article :

(2) The interest in the present case being of a perpetual nature. Article 131 would be inapplicable and it would not, therefore, be necessary for the plaintiffs to bring a declaratory suit under it, and

(3) Where a, plaintiff has already obtained a decree which establishes his right, it would not be necessary for him to again bring a suit for declaration for the same purpose. He can bring a suit for recovery of arrears without seeking declaration and. even if he expressly prays for a declaration such a relief would be considered to be ancillary to the main relief of recovery of arrears and would not be treated as a bar to such a suit. In the present case, there are admittedly three decrees, of courts in favour of the plaintiffs.

There is, firstly, the decree of the court dated 30-7-1898, based on the award. This is a declare for decree passed against the Precedessor-in-interest of the defendants declaring the title of the plaintiffs' predecessors-in-interest. Subsequently, there were two suite for recovery of arrears in which again the plaintiffs' title was established. The first suit was suit No. 336 of 1903 in which the judgment was delivered on 9-9-1904 and a decree on the basis of the same was passed.

The second suit was suit No. 336 of 1907 in which a decree was obtained on the 10th March, 1908. This decree was upheld by the District Judge, Allahabad, in case No. 67 of 1908. This is, in fact the fourth time that a decree establishing the right was obtained. It is worthy of note that in the last case, namely, suit No. 336 of 1907, the defendant No. 1 in the present case as well as his. father and grand-father were all impleaded as parties and the decree of the trial Court as well as of the appellate Court was passed against them and with their full knowledge. The decrees in the said, cases have been held to be res judicata by us.

105. On behalf of the defendant appellants strong reliance is placed on ILR 15 Bom 135 (Z), which lays down the proposition that where a plaintiff, who is refused the enjoyment of a periodically recurring right, fails to bring a suit within 12 years, his right to the recovery of arrears would be barred if the suit to obtain a declaration in respect of the same is barred. It is, however, important to note that in the same case the following significant observations in a previous Bench case were cited with approval:

'But while this is the rule, which must be applied to cases in which a plaintiff must establish his title, before he can ask for arrears accruing due under such title, it does not appear to us that the same rule applies,' when, as in the present case, the plaintiff has already in a former suit obtained a decree declaratory of his title. It is no longer necessary for him to establish his periodically recurring right against any person who is bound by that decree; and this being so, We find nothing in the law of limitation which can be construed into a restriction of the plaintiff's right to recover the arrears falling due within the period of limitation.' (p. 142)

Thus the ruling cited by the appellants' counsel itself provides an answer to his argument,

106. There is an exhaustive discussion of this point in Chhaganlal v. Bapubhai, ILR, 5 Bom 68 (Z37), a case which is full of instructive observations in this regard. In this case it was laid down that where a plaintiff allows the period of limitation to elapse without suing to establish his right,

'he could not be allowed indirectly to accomplish the same object by bringing a suit for arrears falling due within the period of limitation. But while this is the rule which, (if the decisions referred to be correct), must be applied to case in which a Plaintiff must establish his title before he can ask for arrears accruing due under such title, it does not appear to us that the same rule applies, when, as in the present case, the plaintiff has already in a former suit obtained a decree declaratory of his title.'

The appellants' counsel further argued that if this principle is accepted, it might result in there being no period of limitation at all for bringing a suit for recovery of arrears in such cases. Incidentally this argument has also been effectively answered in the same case by the learned Judges in the following words :

'It has been put forward, as an argument against this conclusion that, if it be so, the plaintiff might keep his decree in his pocket for 50 years, or more, and might then sue for arrears; and that thus there would be practically no such thing as limitation. Assuming, for the sake of argument that such would be the case, we do not seen that there would necessarily be any violation of legal principles in the conclusion which we have stated. The principle upon which statutes of limitation rest is not so much that long adverse possession creates a presumption of title; (for the law could hardly treat such a presumption as irrebuttable); but, rather, that it would be unfair to call upon a defendant to defend his title when, through lapse of time, his muniments of title would be likely to have been lost. But this consideration can have no application in a case like the present, in which the defendants are not called upon to defend their title. The question of title, as between the plaintiff and the defendants who are bound by the decree of 1869, has already been determined, once and for all, in the plaintiff's favour.

If the plaintiff has not exacted all which he might have recovered under that decree, his omission to do so has been a distinct gain to the defendants; but it affords no 'answer to the plaintiff's claim to recover arrears which have admittedly accrued due to him within the last twelve years. It might no doubt be unfair to call upon the defendants to meet a claim for arrears of older date; but that is only because it is lively that the evidence of payments made by them is no longer available to them. On this principle, andto this extent only, the statute of limitation operates in their favour.' (p. 72).

107. The law laid down in ILR 5 Bom 68 (Z37) was followed in a Bench decision of the Allahabad case reported in Gajpat Rai v. Chimman Rai. ILR 16 All 189 (238). The facts of the Allahabad case are somewhat similar to the present one. In ILR 16 All 189 (Z38), there was a decree passed in favour of the plaintiff on the basis of the arbitration between the parties allowing one party to remain in possession and allotting the other party a specific amount, in lieu of his share in the property. Following ILR 5 Bom 68 (Z37), it was held that the plaintiff's suit could not be barred by limitation even though they had failed to prove the demand of the amount for the intervening years.

108. In Saiyiduddin v. Avad Behari Singh,' AIR 1917 Pat 364 (239), it was again held that the two suits brought by the plaintiff for recovery of arrears had established his right and following ILR 15 Bom 135 (Z), (Roaji v. Bala), it was observed that where the plaintiff had already obtained a decree which is res judicata between the parties, Article 131 does not require him to bring a fresh suit to establish the same again.

109. Where a plaintiff is not required to bring a suit for declaration, it is quite immaterial whether he prays for declaration or not. It is well-known that in ordinary suits for possession of immovable property, the plaintiff is not bound to bring a suit for declaration immediately after his title is denied by the opposite party.

He can ignore such denial and bring a suit for declaration of his title and possession after the expiry of. the period of limitation for declaration i.e., 6 years provided that his suit is within limitation in respect of the relief of possession i.e., within 12 years. Thus if the plaintiff's title is denied by 'X', the plaintiff can bring a suit for possession of property against 'X' and his suit for possession would be decreed if it is filed Within twelve years of limitation, even though a suit, for declaration might be barred after six years.

The reason for it is that the plaintiff would not be bound to bring a suit for declaration in such a case and the declaratory relief even if sought by him would be treated as ancillary. Thug it was held in Ikram Singh v. intizam All, ILR 6 All 260 (Z40), that where the main and substantial relief sought by the plaintiffs for recovery of possession of immovable property from persons trespassing on it under the title of a fictitious mortgage and the declaration of the invalidity of the defendants' pretensions was no more than an incidental step in the assertion of the plaintiffs' title and right to possession, the period of limitation would be the period governing the main and substantial relief, namely, the period of twelve years' for the recovery of possession.

110. Similarly in a case of this Court reported in Dhanuk Singh v. Tulsi Ram 15 Ind Cas 545 (All) (Z 41) it was held that-

'Where a claim for a declaration is merely ancillary to the claim for some other relief put forward in the same suit and where the granting of such declaration appears to the Court clearly necessary in order to give the plaintiff suitable and adequate relief upon his main claim, the suit will be governed, as regards. limitation, merely by the article of the first Schedule of the Indian Limitation Act applicable in respect of the main relief claimed.' (head note P. 545).

This principle is of a general nature and is applicable not only to immoveable property but also to moveable property.

111. In Pun Aung v. Brijlal 70 Ind Cas 841: (AIR 1923 Rang 11) (Z 42) it was held that:

'If in a suit for declaration and for possession of specific moveable property, the main relief claimed is for possession, and declaration is merely ancillary to it and, even if made, would be of little advantage to the plaintiff, limitation for such a suit is the limitation applicable to the main relief.' (head-note).

112. The ruling cited by the appellants' learned counsel may now be dealt with. Strong reliance was placed on behalf of the appellants on , for the purpose of showing that the right in question in the present case is governed by Article 131, Limitation Act. A perusal of this ruling would, however, show that the right claimed in the Privy Council case was a right to receive a certain percentage from Government assessment. The claim in question was described by their Lordships of the Privy Council as relating to 'a variable amount' liable to change from year to year according to the amount of Government assessment. It is on this ground that it was distinguished in : AIR1945Mad20 , in which in reference to such a right it was observed as follows :

'If there are no collections, then there will be no right to recover for that year....as, in the case before the Judicial Committee in , where the right was to recover a particular percentage from the collections of the villages, the right may be described to be a periodically recurring right.'

As already observed, in the present case the Quantum of right was fixed once for all. It was fixed in lieu of a right to a share in the property and was made a charge on it. It is payable from the holder of the property whoever happens to be for the time being. It is a perpetual right of the nature described in : AIR1945Mad20 . This Privy Council case, therefore, has 110 application to the facts of the present case, nor does it go against the contention of the respondents.

113. On behalf of the appellants our attention was also invited to AIR 1941 Pat 201 (Y). This case related to a suit filed by a proprietor for recovery of rent more than 12 years after the tenant had denied the plaintiff's right to the same. This case is also distinguishable from the present case as the right to recover rent is obviously a periodically recurring right and not a permanent right. Further, in the case referred to, the right was the right of the owner and was sought to be enforced by him. In the present case what is sought to be enforced is not the right of the owner, but the liability of the owner and the right is sought to be enforced against him. Moreover, as shown above, no proper demand and refusal are proved.

114. On behalf of the appellants' AIR 1947 Pat 47 (W); following 8 Cal WN CXCII (X), was relied upon to show that even where decrees are passed, limitation can run after refusal. In AIR 1947 Pat 47 (W). the plaintiffs had accepted the position that they were not entitled to any maintenance under the Will and had come to Court with that ease as it would appear from the following observations :

'The plaintiffs seem to have accepted the position that, they were not entitled to any maintenance from the defendant's father under the will ...............There is no doubt therefore that atleast in 1919 the defendant's father repudiated the claim of the plaintiffs to an allowance under the will.' (50).

In the present case, as already shown by me, theplaintiffs have not come to Court with the case that they have never been paid for more than 12 years. In fact, as shown by me already, there is no evidence at all of non-payment for a continuous period of 12 years after refusal. Further, there is no express repudiation of the plaintiffs' claim to the knowledge of the plaintiffs. Neither demand nor refusal as required by Article 131 has been proved. Moreover, the right in question in those cases was a recurring, right and not a permanent right.

115. The last case cited by the appellants is : AIR1936Mad704 . This case related to a periodically recurring right of a variable nature and following the above discussed Privy Council case. , it was held in this case that the right was a periodically recurring right-namely, the right to recover certain amounts from Government assessment. Article 131 was applicable to the said case. In a way this case would support the respondents' contention. The distinction between a periodically recurring right and a perpetual right was clearly, recognised in this case and the cases laying down this distinction were affirmed as the following observations would show :

'In 30 Mad LJ 482; AIR 1920 Mad 447 (1) (T), a distinction was drawn, between a periodically recurring right and a perpetual right and there can be no doubt that this distinction is a real one but that does not mean that the right claimed in the present suits is a perpetual right.'

116. Thus none of the cases cited on behalf of the appellants seems to provide an effective answer to the points raised on behalf of the respondents. All of them are clearly distinguishable,

117. Learned counsel for the respondents alsoinvited our attention to certain principles of interpretation of statutes, that may be relevant in thepresent situation. He argued that all the equitiesin the present case were in favour of the plaintiffs.They had a right. That right was given to themin lieu of a share they lawfully possessed in theproperty. The right was merely a substitution ofa cash allowance in lieu of the share which theylegally possessed in the properties. The defendant-appellants purchased the properties with full knowledge of the right of the plaintiffs in the said properties. While paying consideration for the samethey must have paid a reduced amount in view ofthe permanent charge about whose existence theywere fully aware.

In fact they were parties to the suit in which the right was decreed in the past. In this situation there is no reason why the provisions of the statute should be strained in their favour, and, even if the meaning of the statute is considered to be ambiguous, the ambiguity should be resolved in favour of the plaintiff. In this connection reference on behalf of the respondents was made to AIR 1931 Pat 285 (Z28) in which the question that arose was whether Article 131 should be applied to enforce payment of money charged upon immovable property. In that connection Fazl, Ali, J. (subsequently a Judge of the Supreme, Court of India)' in a Bench decision of the Patna High Court laid, down as follows:

'I fully recognise that the Courts should have no hesitation in applying the statute of limitation where it clearly applies, but where there are two possible views under this statute, one tending to deprive him to recover them, there is no reason (and) I do not gee why one should not lean in favour of the view which does not entail any hardships or lead to any unjust consequences.' (291)

In 83 Pun Re 1906 page 306 at p. 307 (P) while considering the question whether Article 131 or 132was applicable to the case, the learned Judges observed that 'The Limitation Act must be strictly construed' in this regard.

118. Similarly in a Full Bench case of the Madras High Court reported in Yerukpla v. Yernkola, ILR 45 Mad 648: (AIR 1922 Mad 150) (Z43), it was observed that: 'The words of the articles of the Limitation Act have to be construed strictly.' p. 686 (of ILR Mad): (at p. 166 of AIR).

119. In Asa Ram v. Darba Mal 121 Ind Cas 379: (AIR 1929 Lah 513) (Z 44), a Bench of the Lahore High Court consisting of Sir Shadi Lal, Kt. Chief Justice and 'Sir Alan Broadway, Kt. made the following significant observations:

'Admittedly the Limitation Act has to be strictly construed and, unless a suit clearly falls within the ambit of the Article sought to be applied, the decision should be in favour of the continuation of the suit.' (380) (of Ind Cas): (at p. 514 of AIR).

120. In Tofa Lal Das v. Syed Moinuddin Mirza ILR 4 Pat 448: (AIR 1925 Pat 763) (Z45) a Bench of the Patna High Court consisting of Dawson Miller. C.J. and Poster, J. held that:

'In giving effect to a statute of limitation, if two Articles limiting the period for bringing a suit are wide enough to include the same cause of action and neither of them can be said to apply more specifically than the other, that which keeps alive rather than that which bars the rights to sue should, generally, and apart from, other equitable considerations be preferred,' (head-note).

121. In Kasturchand Okaji Marwadi v. Hari Govind, 36 Bom LR 1068: (AIR 1934 Bom 491) (Z 48), it was observed at p. 1073 (of Bom LR): (at p. 495 of AIR) :--

'It is an accepted principle that in giving effect to a statute of limitation, if two Articles limiting the period for bringing a suit are wide enough to include the same cause of action, and either of them can be said to apply more specifically than, the other, that which keeps alive rather than that which bars the right to sue should, generally, and apart from, other equitable considerations, be preferred.'

122. In Pochya Milay v. Emperor, ILR 40 Cal 239 (Z 47), a Bench of the Calcutta High Court observed as follows:--

'But as this is a question of limitation, it has merely to be stated that there is a doubt as to whether this is an appeal or not to give the applicant the benefit of the longer period. That is a rule which has been laid down by Lord Esher in the case of In re North; Ex parte Hasluck, (1895) 2 QB 264 at P. 270 (Z 48) and it is a rule which has always been followed in this Court and Is cited in Gopal Lal v. Bahorni, 15 Cal LJ 120 (2 49).' (p 243).

Later on in the same judgment it was observed that although they had no doubt in their mind that the article giving the longer period applied, yet if there was any doubt on the subject, the benefit of it should go to the party against whom the law of limitation was invoked,

123. To sum up my grounds for holding that Article 131 of the Limitation Act does not bar the plaintiffs' claim are as follows:--

1. There was no express demand as required by law from the defendant No. 1 or his father or grandfather in Suit No. 11 of 1911. In fact, there was no demand at all from any of them in the previous suit;

2. Consequently there was no refusal by the said defendant in response to the demand. In fact, they were not liable at all to meet the said demand and hence there was no refusal by the parties sought to be made liable;

3. There was absolutely no demand nor refusal of any kind so far as the plaintiff Mst. Hidayatunnisa and her legal representatives in the present case viz., Jamal Uddin and Khalil Uddin are concerned, nor could there be any, as Hidayatunniasa was herself a defendant and not a plaintiff in the previous case. Moreover, the right itself being joint, and indivisible, the plea of adverse possession cannot succeed unless the exclusion or ouster is complete or the refusal is shown to have covered the entire right. Thus exclusion op ouster, even if any, being merely partial, the plea of adverse possession under Article 131 must fail for that reason;

4. The defendant No. 1 has also failed to clearly prove that the alleged refusal was brought home to the plaintiffs. There is no proof of actual knowledge and the circumstances are not such as to raise a presumption of it.

5. There is no evidence of exclusion from enjoyment, that is of non-payment, for a continuous period of 12 years from the date of the alleged refusal;

6. The right claimed is a perpetual right and not 'a recurring right'. It is not a variable claim. The amount claimed is a fixed amount charged upon the property for ever irrespective of the income of any particular year;

7. In fact, the interest claimed is of the nature of an Interest in immovable property. It is claimed against the owner and not by him; in other words, it is not the right of the owner but liability imposed upon him;

8. Article 120 is Inapplicable to the present case because there is a specific article, namely, Article 132 dealing with it;

9. Article 144 is Inapplicable in the present case because the suit is not one for possession by a person claiming to be the owner of the property;

10. The right itself having been established not less than three times previously by decrees passed by Courts in one of which the defendant, his father and his grandfather themselves were parties, it is not necessary to bring a suit again to establish the same right. The rule that a declaratory relief cannot be evaded for the purpose of getting over the bar of limitation does not apply to such a case;

11. Article 131 is clearly inapplicable to the present case for the above reasons; but, even if the situation was doubtful, under the general rules of interpretation applicable to such cases, benefit of it should go to the plaintiffs.

124. Before closing my judgment I may mention that out of the 11 grounds given by me above for holding that the suit of the plaintiffs is not barred by limitation, two of them, namely, grounds Nos. 4 and 6 arose as a, result of questions putby me in the course of arguments by the counsel. While the case was being argued by the learned counsel for the appellants I enquired as to whether in discharging the onus of establishing his plea of adverse possession under Article 131 the defendant has adduced any evidence to prove non-payment of Ulufa to the plaintiffs or that the denial by the defendant was brought to the knowledge of the plaintiffs. To this the reply of the learned counsel for the appellants was that there was no such evidence but that was immaterial as, according to him, the burden or proving the issue lay on the plaintiffs. In other words, his argument was that the burden of establishing that there was no adverse possession under Article 131, Limitation Act, being initially on the plaintiffs, the facts negativing the said plea should have been alleged in the plaint, and the said facts not having been alleged in the plaint, these points cannot be raised for the first time in arguments on behalf of the plaintiffs as it would be entertaining a new plea on behalf of the plaintiffs. In reply to this argument the learned counsel for the respondents argued that the burden of proving the plea of adverse possession under Article 131, Limitation Act, lay on the defendants and it was, therefore, the bounden duty of the defendant to discharge the burden by proving all the ingredients which are required to establish the plea of adverse possession under Article 131, Limitation Act. No doubt, if it is held that the burden of proving the plea of limitation under Art 131 lies on the plaintiffs as it is argued by the appellants' counsel then there would be force in his argument. Having, however, given my full consideration to the matter I have not the slightest doubt in my mind that the burden of proving the plea of adverse possession under Article 131 of the Limitation Act, lay on the defendant, and the arguments adduced by the appellants counsel in this behalf are devoid of all merit and must be repelled. I have already enumerated above in the body of my judgment the grounds for this view and referred to a number of cases including AIR 1934 Pat 44 (L), 19 Cal WN 386: (AIR 1914 Cal 32) (Z9), 14 Mad LJ 477 (Z6) and AIR 1916 Bom 143 (Z7) which lay down that it is for the party setting up the plea of adverse possession under Article 131 of the Limitation Act to establish all the ingredients which are the basis of the plea.

125. Further, the issue as framed by the trial Court rightly placed the burden of this plea on the defendant, who has raised it for the first time. No grievance against the framing of the issue was made by the defendant at the time when the issue was framed or at the time of arguments or at any stage in the trial court. The correctness of the issue was not even questioned in the course of appeal in this Court nor was it at any time challenged in the arguments even before us. Question No. 3 as framed by both of us also rightly places the burden of the issue of limitation on the defendant. Under the circumstances it must be conceded that the burden was rightly placed on the defendant. Hence both the law on the point as well as the form of issue actually framed in the case bar the argument of the plaintiff's counsel on the question of burden.

If the burden was on the defendant then it was clearly not the plaintiffs' duty to allege the facts relevant to this plea in their plaint. On the other hand it was the defendant's duty to have alleged all the facts relevant to it in his written statement including the fact that the plaintiffs were refused the enjoyment of the right for a full period of 12 years and the denial of the defendant was to the knowledge of the plaintiffs. The defendant merely alleged that he had denied the title of the plaintiffs in 1911. Mere denial, as already pointed out, is quite insufficient to establish the plea of adverse possession under Article 131, Limitation Act.

The denial should be to the knowledge of the plaintiffs and should be coupled with exclusion from enjoyment. If it was any party's duty to allege these facts, it was the duty of the defendant on whom the burden of establishing the plea lay. The defendant alleged neither of these facts in his written statement. Under the circumstances, the plaintiffs cannot be called upon to controvert a fact which was never alleged by the defendant in his pleadings. Further, even if the defendant did not allege it in his written statement, it was the defendant's duty at any rate to adduce evidence in support of all. the facts which go to establish the ingredients of adverse possession set up by him.

The defendant failed even to do that. Thus the defendant has hopelessly failed to discharge the heavy onus that lay upon him and he cannot be allowed to escape the consequences of this failure by arguing that the burden in the case on this particular point lay on the plaintiffs.

126. Reference in this connection may also be made to Order 6, Rule 13, Civil P. C., which lays down as follows:

'Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden, of proof lies upon the other side unless the same has first been specifically denied' (e.g., consideration, for a bill of exchange where the plaintiff sues only on the bill and not for a consideration as a substantive ground of claim.)

By way of illustration reference may be made to the plea of adverse possession raised under Article 144, Limitation Act. It cannot be doubted that the burden of establishing this plea of adverse possession lies heavily on the party setting it up. Where, therefore, a defendant sets up the plea of adverse possession, under Article 144, Limitation Act, the burden would be upon the defendant to establish the necessary ingredients of adverse possession namely, that such adverse possession was throughout hostile, open, adverse, complete and continuous, and that it was so far a full period of 12 years to the knowledge of the plaintiffs.

It is not for the plaintiffs to allege facts regarding this plea in anticipation of the defendant's plea. The law on this point is summarised under Order 6 Rule 2, Note 4 of Chitaley's Code of Civil Procedure as follows:

'It is no part of the pleading to anticipate the opponent's pleading and to state facts in answer thereto. In other words, a party should not plead to facts which have not become material at the stage of filing his pleading.'

At the time the plaint was drafted by the plaintiffs the plaintiffs did not know that the defendant would take the plea of adverse possession. Under the circumstances it is difficult to understand or to accept the argument of the defendant's counsel to the effect that it was for plaintiffs to anticipate this plea and to allege facts relating to it in their plaint.

As it happens in this particular case the defendant did not allege any of these facts even in his written statement and he merely alleged a bare denial of title in 1911 evidently considering it quite sufficient. The result was that the burden of proving all the ingredients of the plea of adverse possession remained on the defendant.

127. Moreover the defendant-appellants' argument clearly overlooks the fact that it is not until all the evidence of he defendant is closed that the plaintiffs would be able to know that the defendant has failed to establish all the ingredients of adverse possession and hence the point can only be taken after the evidence is finished. The question whether there is any evidence to support the plea, being, a question of law can be taken at any stage of the case.

128. The next argument of learned counsel for the appellants was that as the point was not argued by the learned counsel in the trial Court, therefore, there is an assumption or rather an admission that payment and knowledge was admitted by the plaintiffs. In reply to this argument learned counsel for the respondents argued that there can be no question of assumption or admission until the attention of the parties is drawn to a point.

In fact, the assumption or admission, if at all, is against the defendant for the burden of proving the issue lay on the defendant and he failed to discharge it or to adduce any evidence in support of it. The assumption is against a party that failed to discharge the onus that the law had cast on it. On this point also I find myself in agreement with the argument advanced on behalf of the respondents' counsel. Learned counsel for the appellants was unable to point any explicit admission on behalf of the plaintiffs that the 'Ulufa' was not paid to them or that they had knowledge of the said denial. On the other hand there is the direct evidence of Bahauddin on behalf of the plaintiffs that the defendant had been paying 'Ulufa' to his relations. This evidence stands unchallenged and unrebutted.

Thus there is the direct evidence to the contrary. How in the teeth of this evidence adduced on behalf of the plaintiffs to the contrary is it possible to argue that there is an admission on behalf of the plaintiffs that they had not been receiving 'Ulufa' passes one's comprehension. The argument of admission can only be based on a complete misapprehension of evidence adduced in the case or a total misconception of the law of admission.

129. Learned counsel for the defendant strongly relied on Section 58 of the Evidence Act. To my mind this section has no application whatever to the facts of the present case. The doctrine of Implied admission can only be invoked when a party on whom the burden lies, fails to allege facts in support of it or when the facts specifically alleged by a party in support of its plea are not denied by the other party. In the present case neither the burden lay on the plaintiffs nor were the facts of non-payment or knowledge, alleged by the defendant. Under the circumstances no duty was cast on the plaintiffs to state any facts in regard thereto nor were they at any stage called upon to rebut it.

Further, the doctrine of implied admission is invoked only against a party who was under obligation to allege certain facts. In the present case as already observed, the defendant wag under an obligation to allege the facts in question. The defendant having failed to allege it or even to adduce any evidence in support of it, Section 58 of the Evidence Act operates against the defendant instead of in his favour. Moreover the rule of implied admission cannot be invoked where there is express evidence to the contrary.

In the present case there is express evidence of the plaintiffs to the contrary and the doctrineas incorporated in Section 68, Evidence Act, is, therefore, not attracted at all. The failure on the part of a party to discharge the burden which lies upon it, gives rise to an assumption against the party on whom the burden lies and not to an assumption in his favour. It would be strange if a party, who fails to discharge the onus that lies upon it under law be given the right to take advantage of its own weakness and be allowed to erect an admission against the other party on the basis of its own default. The arguments of the appellants' counsel on this point appear to me to have no substance and must be rejected.

130. Further, the argument of the appellant's counsel appears to me to be on a misapprehension of the exact position. The plea of limitation by adverse possession was taken, by the defendant, and the only question, therefore, is whether he has established all the ingredients of his own plea by evidence. If there is any 'lacuna' in his evidence he cannot take advantage of it. The fact that a certain 'lacuna' is discovered at the appellate stage does not have the result of filling up the 'lacuna'.

The lacuna continues throughout and it is always open to a party to show that certain ingredients of the plea of adverse possession have not been established by any evidence by a party who seeks to rely on it and on whom the burden of establishing it lay.

131. In this connection it is significant to note that there are nine other grounds in addition to the two points relating to non-payment and knowledge raised in reply to the defendant's plea of adverse possession. They are mentioned and enumerated by me above. None of these nine points is stated in the plaint nor any of them appeared to have been argued before the trial court as before us, yet it is conceded that they can be argued in reply to the defendant's plea of limitation. Thus e.g. the plaintiffs have not alleged in their plaint that there was no express demand from the appellants nor refusal by the defendant in answer to it, nor have they alleged in their plaint that the right in question was not a 'recurring right' and that it was a permanent right in the nature of immovable property and so on.

They were not argued even in the trial court yet it is conceded that they can be argued in this Court. My learned brother has also fully entertained them and has dealt with them in his own judgment. The reasons that entitle the plaintiffs to argue these nine other points equally apply in respect of the two remaining points. Thus the position adopted by the appellants' counsel in this regard appears to me to be clearly inconsistent and wholly unsupportable. The parties have been fully heard on the said points.

Both the parties have argued both these points not only orally but submitted their written notes both to me as well as to my learned brother on questions of fact as well as of law relevant thereto. I have, therefore, entertained the said arguments and after fully hearing parties on them incorporated my own views regarding them.

132. Before parting with this point, I may mention that the case involved a study of voluminous amount of evidence and covered a vast range of legal points. The parties' counsel admitted that they felt themselves lost and were, therefore, unable to answer all the questions put by the Court during their arguments. Under the circumstances, I was compelled to study the file myself on a number of points with a view to elucidate information and to satisfy myself on matters on which the parties' counsel were unable to sup-ply the necessary material. I, therefore, felt thatI should take time for a fuller consideration and a deeper reflection on the entire matter.

It is for this reason that I chose to defer my judgment, and, after devoting my earnest attention to it, I eventually found myself in partial disagreement with my learned brother.

133. In the course of this re-consideration of the entire matter by me, it also came out that one Jamal Uddin who was a party to the decree and was a necessary party to the appeal was not impleaded at all in the memo of appeal. Jamal Uddin being a joint decree-holder was a necessary party to the appeal and the failure to implead him would obviously have resulted in the dismissal of the entire appeal for want of necessary parties. As the point was apparent and went to the root of the whole case, it could not be ignored or overlooked.

Notice was accordingly Issued to both the parties to address themselves on this vital point. When faced with this point, the learned counsel for the appellants realising its fatal effect on the entire appeal, stated that he would give an application under Section 5 of the Limitation Act to implead Jamal Uddin in the appeal. I allowed him this opportunity. This application was given admittedly thirteen years after the filing of the appeal and even after expiry of sixty days after the admitted date of knowledge of this serious defect by the appellants, but, in spite of it, I thought that the application should be allowed in the interests of justice and I did so without any hesitation in order that the entire appeal of the defendant should not fail on a technical point, and, in fairness, the whole case should be Judged on merits both on questions of fact as well as of law.

It is from this point of view that I have approached the entire matter, and it is for this reason also that I have brushed aside the technical argument that paints regarding non-payment and knowledge should not be allowed to be raised on behalf of the respondents at this stage. Even as technical pleas, in my opinion, they have no force and cannot stand the test of scrutiny.

134. Lastly, whatever view the Court might take on the points relating to non-payment and knowledge the fact remains that they constituted only two of the reasons for holding that the suit is not barred by limitation. Even if these two grounds are ignored, in my opinion, the remaining nine grounds mentioned in the body of my judgment are by themselves strong enough to repel the plea of adverse possession raised on behalf of the defendant. Thus question No. 3 which, deals with the general, plea of limitation really comes first in the order of importance and is the main question in the case.

Whatever view might be taken on the first two questions, question No. 3 would still stare us in the face, and it is not possible to fight shy of it on the score of any technicalities. Even if I had held against the plaintiffs on the first two points, it would not have made any difference to the conclusion to which I have arrived after giving my anxious and prolonged consideration to all the points involved in the case and to the irresistible and overwhelming Weight of considerations which in the present case go to forcibly repel the defendant's plea of adverse possession based on Article 131, Limitation Act.

135. For the foregoing reasons, I am of the opinion that neither the ingredients required by the first column nor of the second and thirdcolumns of Article 131, Limitation Act, have been made out in the present case; and the defendant has failed to substantiate the Plea of adverse possession based on Article 131, Limitation Act. The net result of the above discussion would be that, in my opinion, the First Appeal No. 304 of 1953 should be partially allowed and. the decree of the trial Court should be modified by decreeing the claim of the plaintiffs against all the properties except village Tikri.

136. BY THE COURT--In view of the difference of opinion between us, we refer the following questions for decision by a third Judge, viz.

1. Can the argument based on the want of evidence regarding payment of 'ulufa' in respect of the plea of limitation be raised in view of the fact that there was no such allegation in the plaint to that effect and the point was not raised in arguments? If so, what is its effect on the plea of limitation?

2. Can the argument based on the want of evidence about knowledge of denial of respondent's right to claim 'ulufa' contained in the written statement of the 1911 suit be allowed to be raised in view of the fact that there was no such allegation in the plaint and the point was not raised in arguments? If so, what is its effect on the plea of limitation?

3. Even if the above two points are not allowed to be raised, is the plaintiffs-respondents claim, in the circumstances of the case, time-barred against the legal representatives of Matt Mohan Das in respect of the properties of villages Gadna. Akhaipur, Yasinpur, Abdalpur, Sarai Alam and Chhatauni?

Bhargava J.

137. In view of the difference of opinion between them, Brij Mohan Lall, J., N. U. Beg, J., have referred the following questions for decision by a third Judge:

'Q. 1. Can the argument based on the want of evidence regarding payment of ulufa in respect of the plea of limitation be raised in view of the fact that there was no such allegation in the plaint to that effect and the point was not raised in arguments? If so, what is its effect on the plea of limitation?

'Q. 2. Can the argument based on the want of evidence about knowledge or denial of respondents' right to claim 'ulufa' contained, in the written statement of 1911 suit be allowed to be raised in view of the fact that- there was no such allegation in the plaint and the point was not raised In arguments? If so, what is its effect on the plea of limitation?

'Q 3. Even if the above two points are not allowed to be raised, is the plaintiffs-respondents' claim, in the circumstances of the case, time-barred against the legal representatives of Man Mohan Das in respect of the properties of villages Gadna, Akhaipur, Yasinpur, Abdalpur, Sarai Alam and Chhatauni?'

This reference has been laid before me for answering the three questions referred by the learned Judges of the Bench.

138. The first appeal, out of which this reference arises, involved a number of points of controversy between the plaintiffs, who were respondents in the appeal, and several sets of defendants who were appellants in it. In this reference, however, I am only concerned with one set of defendant-appellants, This set of defendant-appellants are the successors-in-interest of Man Mohan Das, his father Madho Prasad, and his grand-father. Rai Bahadur Ramcharan Das.

Since the interests of other appellants in the appeal are not in question in this reference before me. I shall for the sake of convenience, refer to this set of appellants as 'appellants' so that this term, as used in my judgment, is to be read as indicating this set of appellants only. This term 'appellants' used by me is also to be deemed to include the predecessors-in-interest of these appellants, viz., Manmohan Das, Madho Prasad and Rai Bahadur Ramcharan Das.

139. In giving the facts also, I shall confine myself to those few facts which are relevant for the purpose of deciding this reference. There was a family of Sheikhs at Mau Aima in the district of Allahabad which owned considerable property in a large number of villages. One of the members of the family was Zahiruddin whose wife was Shrimati Eadrunnissa. Zahiruddin died in the year 1871, leaving behind his widow, Shrimati Badrunnissa, two sons Fakhruddin and Ziaullah, and one daughter Shrimati Tahira Bibi. Shrimati Tahira Bibi was married to Sharfuddin and of this marriage were born three sons, Alauddin, Bahauddin, Muhammad Zakaria, and one daughter, Shrimati Hidayatunnissa.

In the year 1897, there was some dispute about the partition of the property which had been left by Zahiruddin. The parties involved in that partition were not only successors-in-interest of Zahiruddin but also other members of the family who were within Zahiruddin's branch. On 4-2-1897, all the persons concerned with the partition executed an arbitration agreement by which the dispute was referred to arbitration. This agreement was renewed on 1-6-1897, as the arbitrators could not finish their work within the period of two months allowed under the former agreement.

Under this later agreement, a further period of two months was allowed and the arbitrators gave their award on 26-7-1697. Fakhruddin had died in the year 1873. By the award dated 26-7-1897, the entire property left by Zahiruddin was allotted to the share of his sole surviving son, Ziaullah. Shrimati Tahira Bibi had died in the year 1883 but her three sons, Allauddin, Bahauddin and Muhammad Zakaria, and her daughter Hidayatunnissa were alive. These three sons and the daughter of Shrimati Tahira Bibi were not given any share in the property of Zahiruddin under this award.

The entire property was given to Ziaullah. A statement was made by or on behalf of the sons and daughter of Shrimati Tahira Bibi that they had been receiving a sum of Rs. 750/- per annum from the property left by Zahiruddin and they had agreed to continue to receive this sum. This sum was described as 'ulufa'. It was to be free from all family debts. The entire property left by Zahiruddin was given to Ziaullah and he was made liable to all the family debts. Ziaullah made a statement that he would pay a sum of Rs. 750/- per annum to Alauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa according to the details mentioned therein.

The details mentioned were that Alauddin was to receive Rs. 314/- per annum, Bahauddin Rs. 214/- per annum, Muhammad Zakaria Rs. 214/- per annum and Shrimati Hidayatunnissa Rs. 108/- per annum. The award proceeded to accept this statement made by the parties and went on to lay down that this amount payable as ulufa to these four persons was to be a charge on the property left by Zahiruddin deceased. The amount was to be paid to these four persons and their heirs generation after generation and was to be a charge on the property left by Sheikh Zahiruddin, whether that property remained in possession of Ziaullah or passed to the possession of any other person.

According to the award, therefore, any transferee of the property allotted to the share of Ziaullah was liable to pay this amount of ulufa as a charge on that property. In this award the shares of the various members of the family had been defined but the property was not actually divided. On 15-5-1901, there was another arbitration agreement by which one Maulvi Rahmatullah was appointed as an arbitrator with the object of separating the shares of different members of the family. Maulvi Rahmatullah delivered his award on 13-9-1901. He allotted to Ziaullah the property which was detailed in Schedule A of the plaint in the present suit.

The ulufa, which had been granted by the earlier award to the sons and daughter of Shrimati Tahira Bibi, was upheld and it was laid down that the ancestral property of those, who were liable for payment of the ulufa, was to remain liable for its payment as heretofore. This was judicially interpreted to mean that the property allotted to Ziaullah, which was detailed in Schedule A of the plaint in the present suit, became charged with the payment of ulufa to the three sons and one daughter of Shrimati Tahira Bibi.

Both the learned Judges of the Bench, who heard this appeal, are agreed that, as a result of this award, the property, which was allotted to Ziaullah, became charged with this ulufa payable to Alauddin, Bahauddin, Mahammad Zakaria and Shrimati Hidayatunnissa.

140. Ziaullah died in 1902. One-sixth of his share devolved by inheritance on his mother, Shrimati Badrunnissa, On 24-11-1902, Shrimati Badrunnisa made a will bequeathing one-third of this one-sixth share to her three grand-sons, viz., Alauddin, Bahauddin and Muhammad Zakaria, who were three of the persons to whom ulufa had been granted.

141. In 1903, the first suit, which was numbered as Suit No. 336 of 1903, was instituted by the persons entitled to this ulufa to enforce their rights. The legal representatives of Ziaullah and some other persons to whom some of the assets of Ziaullah had been transferred, were impleaded as defendants. The Court held that the charge subsisted, as already stated on Ziaullah's, share only.

It further held that, since Alauddin, Bahauddin and Muhammad Zakaria had, by virtue of Shrimati Badrunnissa's will, become owners of one-eighteenth share in the property charged with ulufa, the suit for recovery of one-eighteenth share charged on that property could not be decreed and the charge could be enforced to the extent of 17/18th share only. It was also held that the integrity of the charge had been broken, so that each defendant was liable to pay the proportionate share of his liability and a joint decree could not be passed against all of them.

142. In 1907 the second suit for recovery of ulufa was filed and it was numbered as Suit No. 336 of 1907. This time all the persons entitled to ulufa did not join as plaintiffs. The suit, was filed by the three sons of Shrimati Tahira Bibi, viz., Alauddin, Bahauddin and Muhammad Zakaria. Shrimati Hidayatunnissa, the fourth person entitled to ulufa, was made a defendant.

The three plaintiffs only claimed their share of the ulufa at the rate of Rs. 214/- per annum each, making a total of Rs. 642/- per annum, with a further deduction of one-eighteenth out of it, as one-eighteenth of the property of Ziaullahcharged with the ulufa had passed into the handsof those three plaintiffs.

In this suit, the appellants, Manmohan Das. Madho Prasad and Rai Bahadur Ramcharan Das, were also impleaded as defendants as they had, by that time, acquired mortgagee rights in some of the properties originally held by Ziaullah. The suit was decreed.

143. Then came the third suit (Suit No. 11 of 1911) which was brought for the recovery of ulufa for the period commencing from 1-7-1907, and ending with 30-6-1910. The plaintiffs this time were Alauddin, Bahauddin and the legal representatives of Muhammad Zakaria as the latter had died by that time. Shrimati Hidayatunnissa was again impleaded as a defendant.

The plaintiffs only claimed ulufa at the rate of Rs. 642/- per annum after deducting one-eighteenth share from it, making it clear that they were only claiming the amount in respect of the ulufa which had been granted by the award in favour of Alauddin, Bahauddin and Muhammad Zakaria, omitting the amount which had been allotted to Shrimati Hidayatunnissa. On 28-6-1911, the appellants filed a written statement and denied the existence of this right to recover ulufa.

They also denied the validity of the charge and further contended that, since they had not been in possession of any property during the period to which the suit related, no decree could be passed against them. One of the plaintiffs in the suit was Sharfuddin, father of Alauddin, Bahauddin and Muhammad Zakaria, as he was one of the heirs of Muhammad Zakaria. Sarfuddin during the pendency of the suit and his legal representatives were brought on the record.

On 23-7-1914, the suit was ultimately withdrawn with liberty to bring a fresh suit on the same cause of action on the ground that the suit was not maintainable without a succession certificate having been obtained by the legal representatives of Sharfuddin. The Court allowed the suit to be withdrawn with permission to bring a fresh suit on the same cause of action. Thereafter came this present suit which was instituted on 28-5-1935.

144. In this suit, amongst other pleas taken by the appellants, it was also pleaded that they were bona fide purchasers for consideration without notice of the charge, that the claim was time-barred and that the property in villages Gadna and Chhataoni Khas, which had once been sold in execution of the charge, could not be re-sold. They also denied the existence and the validity of the charge.

Amongst the properties, which were at the time of this suit in possession of the appellants, were properties of villages Gadna, Akhaipur, Yasinpur Abdalpur, Sarai Alam and Chhataoni Khas. Both the learned Judges constituting the Bench were agreed as to the liability of the other properties against which the charge was sought to be enforced. So far as the five villages, Gadna, Akhaipur, Yasinpur Abdalpur, Sarai Alam and Chhataoni Khas, are concerned, Brij Mohan Lall, J., was of the opinion that the claim of the plaintiff-respondents against the appellants for enforcement of the charge of ulufa against these villages was time-barred whereas Beg J., was of the opinion that it was not time-barred. It is in these circumstances that the third question has been referred to me for opinion.

145. The circumstances, under which the first and second question have been referred, may also be enumerated at this stage. It appears from the order dated 4-5-1956, delivered by Brij Mohan Lall, J., that this first appeal was argued before the Bench from 16-1-1956 to 9-2-1956. Immediately after the conclusion of the arguments, Brij Mohan Lall J., started dictating the judgment a3 till then Beg J., was agreed, with the view which he was taking.

The judgment was dictated for the rest of the day. It could not be completed on 9-2-195.6. On 10-2-195S, Beg J., met Brij Mohan Lall J., in Chambers and told him that he had begun to entertain some doubts, so that he would like to reserve his judgment. Brij Mohan Lall J., proceeded to complete his part-delivered judgment and made an announcement in Court to learned counsel appearing on either side that what was originally intended to be the judgment of the Court was to be taken as his judgment alone and that the judgment of Beg J., would follow.

Beg J., thereupon wrote his separate judgment, differing from Brij Mohan Lall J., on the question of the suit being time-barred against the five villages mentioned above. Consequently, on 4-5-1956, after having seen the draft judgment prepared by Beg J., Brij Mohan Lall J., delivered a supplementary order in continuation of his earlier judgment dated 13-2-1956.

After giving his reasons, he adhered to the view which he had expressed before. Subsequently, on 9-5-1956, Beg J., signed his judgment. Beg J., took the view that the burden of proof of the ingredients according to which the plaintiffs-respondents' claim was time-barred, lay on the defendant-appellants, so that the plaintiff-respondents were entitled to urge in this appeal that there was want of evidence regarding payment of ulufa in respect of the plea of limitation and, further, they were entitled to urge that there was want of evidence about knowledge of denial of the respondents' rights to claim ulufa contained in the written statement of the 1911 suit.

Brij Mohan Lall J., it appears, was of the opinion that these two points could not be raised by the plaintiff-respondents in view of the fact that there were no such allegations in the plaint and the points had not been raised in arguments. There being this difference of opinion, the first and second questions were also framed by the Bench and referred for opinion to a third Judge,

146. In answering the questions referred to me, I find that it will be more convenient to take up the third question first and deal with the first and second questions later on. I have come to this opinion because the answer to questions Nos. 1 and 2 depends on a consideration of the question of burden of proof with regard to the detailed facts on which findings have to be given in order to find out whether the plaintiff-respondents' claim is or is not time-barred and this can best be examined when dealing with the third question.

147. It is clear from the judgments of the two learned Judges constituting the Bench that the answer to this third question is dependent on the effect of Article 131, Limitation 'Act, on this suit. The suit, as framed by the plaintiff-respondents, was for the purpose of enforcing paymentof the amount due as arrears of ulufa money which, according to the plaintiff-respondents had fallen due during a period of 12 years preceding the date of the institution of the suit and which was a charge upon immovable property including the five villages mentioned in this question.

The suit, as framed, clearly fell within Article 132, Limitation Act. It was a suit to enforce payment of money charged on immovable property and, under that article, the suit has to be brought within 12 years from the time when the money sued for had become due. According to the allegations made in the plaint, the cause of action for the suit accrued within 12 years of the institution of the suit and, consequently, if the plaint alone be looked at in order to determine whether the claim of the plaintiff-respondents is time-barred or not, it must be held that the suit was within time.

On behalf of the appellants, it has, however, been contended that this suit to enforce payment of money charged upon the immovable property is really a suit to enforce a periodically recurring right and the enjoyment of that right had been refused to the plaintiff-respondents during the pendency of Suit No. 11 of 1911 which suit was withdrawn on 23-7-1914.

The refusal of enjoyment became complete on 23-7-1914, and the suit to establish the existence of this periodically recurring right had to be brought within 12 years under Article 131, Limitation Act. No such suit having been brought, the plaintiff-respondents are not entitled to a decree for the money by sale of the immovable property even though the actual amount claimed became due within 12 years of the institution of the suit.

This proposition entails examination of various aspects of the case. It has to be found out whether the right to enforce payment of money claimed in the suit was a periodically recurring right and, further, whether the plaintiff-respondents were first refused the enjoyment of that right more than 12 years before the institution of the suit. Before examining these aspects of the case, however, I think that it will be convenient to consider the question whether, if the suit, as framed, falls under Article 132, Limitation Act and is thus within time under that article, no decree can be granted if the right claimed is a periodically recurring right and the enjoyment of that right was first refused to the plaintiff-respondents more than 12 years before the institution of the suit.

In order to examine this question, I will proceed on the assumption that the right, for the enforcement of which the present suit was brought, was a periodically recurring right and that the plaintiffs were first refused the enjoyment of that right more than 12 years before the date of the institution of the suit. The point arises because it has been contended that, if the suit, as framed, falls under Article 132, Limitation Act, Article 131 of that Act can have no application at all and must, be ignored altogether.

Article 131, Limitations Act, it is contended, only applies when the suit is brought for establishing the periodically recurring right and not when the suit is merely for the enforcement of that right and no prayer is sought either for declaration of the right or in any other form, which would amount to a prayer for establishment of that right.

On behalf of the appellants the contentionis that, if a suit to' establish the existence of the right becomes time-barred, a suit for the recovery of money under that right by enforcement of that right cannot be decreed. Learned counsel for the parties have cited before me a number of decisions of various High Courts in India on this question but it appears to me that the fullest discussion of this point is to be found in a decision of a Division Bench of this Court in : AIR1937All57 . The appeal, which came up before this Court in that case arose out of a suit brought for recovery of parjot, i.e., ground rent in respect of the site of a house which was occupied by the defendants while the plaintiffs were admittedly the landlords. The plaintiffs had claimed that the defendants were liable to pay parjot at the rate of ten annas a year, out of which six annas a year were, leviable on the plot in question, on the basis of an agreement to pay such ground rent.

A sum of Rs. 1/2/- was claimed by the plaintiffs on account of the ground rent for the three years preceding the suit. The defendants in the suit admitted that the plaintiffs were the landlords of the land and that the defendants were occupying the site as raiyats or tenants but they denied that there was any liability to pay parjot.

The finding of fact, which was accepted bythis Court, was that the plaintiffs, through theiragents, had been making demands but the defendants were always refusing payment. Such demands and refusal had been going on for 15 or 16years prior to the suit. In particular, a suithad been brought by the plaintiffs' predecessorsin 1901 for recovery of parjot and the right torecover such parjot was denied by the predecessors of the defendants in their written statement,but the suit was allowed to be dismissed for default of appearance, Sulaiman C. J., deliveringhis judgment in that case, considered the questionwhether Article 131, Limitation Act, was applicablein that case.

He accepted the proposition that, if the suit be purely for recovery of arrears of rent, Article 110 would be applicable and a claim for more than three years would be barred by time. On the other hand, if the suit be brought merely for a declaration that the plaintiff possesses a periodically recurring right to get rent from the defendant, then the suit would certainly be governed by Article 131 and would be barred by time if there had been a refusal of the enjoyment of the right more than 12 years of the suit.

He then proceeded to consider the question whether, if a plaintiff brought a suit for recovery of arrears of rent for the three years preceding the suit without asking expressly for a declaration of his right to recover rent, the suit would be within time even in a case where there had been a refusal of enjoyment of that right more than 12 years before the institution of the suit. He proceeded to hold:

'It seems to me that a plaintiff cannot be allowed to evade the provisions of Article 131 by merely not asking for an express relief for a declaration of right. A plaintiff is not entitled to recover arrears of rent without in the first place establishing his right to recover it, if such right is denied. Therefore, where such a right is denied, a claim for recovery of rent necessarily involves as a condition precedent the establishment of the plaintiff's right to recover rent, irrespective of the question whether an express relief for such a declaration is asked for or not.

If a suit brought for the establishment of the plaintiff's right would be barred, by time, then by merely not asking for such a relief the plaintiff cannot evade the law of limitation, and recover the amount due.

Such a view would, in my opinion, practically nullify the provisions of Article 131.''

I may say with respect that I entirely agree withthe view expressed by Sulaiman C. J., in that case.The provisions of the Limitation Act clearly contemplate the existence of a periodically recurringright and has provided for limitation in respectof suits based on such a right. If the suit beone to establish such a right, the suit has to bebrought within 12 years of the first refusal ofthe enjoyment of the right and is clearly governed by Article 131.

If the suit be not one to establish the right, the enjoyment of that right can be enforced through courts by bringing a suit under the appropriate article applicable to the nature of the relief that can be claimed in enjoyment of the right. In the case cited above, the periodically recurring right claimed by the plaintiffs was the right to receive a sum of six annas per year as parjot or ground rent.

Such a suit fell within the scope of Article 110. In the present case, the suit is for recovery of ulufa money charged upon immovable property and consequently, Article 132, Limitation Act, governs the suit. In other cases, where no specific article of the Limitation Act may be applicable, the period of limitation would be six years computed from the time the right to sue accrued under Article 120.

If the right had been one to receive interest periodically falling due from the defendant to the plaintiff upon money advanced, the suit for recovery of money, which would be a suit for enforcement of a recurring right to receive interest, would fall under Article 63. In fact, it appears that, in respect of any and all recurring rights, the suit to obtain relief under that right would be governed by some article of the Limitation Act or the other, and Article 131 would not become applicable unless the suit was so framed as to include a prayer for establishing the periodically recurring right.

If we accept the interpretation that Article 131 is to have no effect on such suits brought for enforcement of the right omitting altogether a prayer for establishing the existence of the right, the result would be that Article 131 would always be evaded and a refusal of the enjoyment of the right however anterior to the suit it may be, would be rendered ineffective.

This interpretation would, therefore, completely nullify the provisions of Article 131. It was in this light that Sulaiman C. J., further proceeded to consider the alternatives in a suit where a specific relief for the establishment of the right is not claimed and stated that there could be two alternative views. In his own words:

'First that inasmuch as the establishment of the right to recover rent is a necessary and preliminary condition to the decree for arrears, the former must be understood to be necessarily implied in a suit for arrears of rent. Of course, where the right itself is not denied or at any rate was not denied more than 12 years before the suit, no serious difficulty arises, and the arrears can be claimed for the period allowed by the appropriate article; but where the right is not admitted, then the establishment of such right mustprecede the decree for arrears in favour of theplaintiff.

The second Is that, if the plaintiff has deliberately refrained from asking for the establishment of his periodically recurring right but merely asks for a decree for money, then the claim, unless the plaint is amended, must fail, if the right to recover it is denied, for obviously the plaintiff cannot get a money decree without first proving that he has such a right.'

Thus the principle laid down by Sulaiman C. J., is that, if a plaintiff brings a suit to recover money claimed by him under a periodically recurring right and his right to recover money is denied, the plaintiff must not be permitted to establish that right in that suit if the suit was brought at a time when a suit for establishing such a right by him had already become barred by time.

This must be accepted to be the correct interpretation as such an interpretation makes Article 131 effective and prevents evasion of that article by which it could be nullified. The view expressed by Sulaiman C. J., was further supplemented by Bajpai J., when he dealt with this point in another aspect. Bajpai J., held:

'The right to recover ground rent (parjaut) is 'a periodically recurring right', and it is conceded that, if the plaintiffs had brought a suit for the establishment of this periodically recurring right, the plaintiffs' suit would have been barred by Article 131, Limitation Act, inasmuch as the plaintiffs were first refused the enjoyment of the right more than 12 years ago. But it is contended that the present suit is not a suit for the establishment of any right but for the recovery of arrears of rent, and under Article 110 the plaintiffs have three years from the time when the arrears become due for bringing a suit.

On the face of it, the position seems to be anomalous, but the contention of the plaintiffs is that in order to see whether the present suit is barred by limitation or not the only article that should be looked at is Article 110 and not Article 131. In this view of the case, the question arises if the arrears claimed were due or not at the time of the suit. The defendants say that looking into the facts of the present case the denial was made in 1901 and that even if the plaintiffs prove the fact that they are the landlords and that there was any settlement by which the defendants' predecessor engaged to pay parjaut to the plaintiffs, rent continued to be payable at best for a period of about 12 years from 1901 and after the expiry of 12 years from 1901 the arrears became non-payable and therefore are not due from that time.

In this view of the case the plaintiffs havefailed to establish that any arrears were duefrom after 1913, and even if one were to look atArticle 110 alone, the plaintiffs' suit would be barredby time.'

The present suit before me was brought under Article 132, Limitation Act and could only lie if the money sued for became due. Applying the view expressed by Bajpai J., to this case, it would again have to be held that the amount claimed in the suit did not become due when the enjoyment of the right had been refused in Suit No. 11 of 1911 so that the claim of the plaintiffs cannot succeed.

148. This view expressed by the learned Judges of this Court in the case cited above has been criticised by learned counsel for the respondents on the ground that, though the suit to establish the periodically recurring right under Article 131, Limitation Act, had become time-barred,that right had not become extinguished as there was no provision for extinction of such a right in the Indian Limitation Act similar to the provision made in Section 28 for extinction of the right to property on determination of the period limited to any person for instituting a suit for possession of that property.

It is perfectly' true that the Limitation Act has made no specific provision for extinction of rights if the suit to establish such a right is not brought within the time prescribed by the Act but in my opinion, this cannot make any material difference. There is no doubt that Section 28, Limitation Act, is not applicable in the present case, because the recurring right claimed in this suit by the plaintiff-respondents was not of such a nature that, by virtue of it, the plaintiff-respondents could institute a suit for possession of any property.

Under the award, the plaintiff-respondents were granted a right which was confined to receipt of ulufa money every year and, in case of non-payment, to enforce payment of that money as a charge on the property but there was no provision that, in default of payment or on their failure to enforce payment of the money as a charge, they could bring a suit for possession of the property. Section 28, Limitation Act, did not, therefore, in terms, apply in the circumstances of this case.

The absence of any specific provision for extinction of such a right does not, however, necessarily mean that the right can be enforced even when a suit to establish the right has become time-barred. It is to be noticed that, except for this one provision of Section 28, Limitation Act, there is no other provision for extinction of rights, the suits in respect of which are governed by the various provisions of the Indian Limitation Act.

Once the suit for establishing the right itself is barred, the intention of the Act can only be that rights accruing under that right should also become unenforceable. An example may be taken of a simple money bond, the principal amount of which may be payable after a period of three years computed from the date of the execution of the bond with a provision that the interest is to be paid every year. A suit for recovery of the principal money on the basis of the bond would become time-barred six years after the execution of the bond under Article 66, Limitation Act.

Can it be contended. that, because there la no provision for the extinction of the right to the principal under the bond, the creditor can continue to claim the annual interest from the debtor indefinitely for as long a period as he may like to do so? If extinction of the right under the bond be held to be necessary to prevent accrual of the right to the interest, it would appear that, under the Indian Limitation Act as it is at present, the creditor can go on realising the Interest accruing to him every year after the execution of the bond for ever, even though he may have lost his right to recover the principal money under the bond due to the limitation prescribed under Article 66.

Such an interpretation, in my opinion, would be anomalous and could never be intended to be laid down in the Indian Limitation Act. It could never have been intended that a debtor should become eternally liable to pay interest to his creditor on money advanced to him under a bond when a suit for recovery of the principal amount on the bond has become barred by time.

The limitation Act clearly Intended that, ifthe right to recover the money on the bond had itself become time-barred, the right to interest would not be enforced as the non-enforceability of the principal right must be held to govern the enforcement of the subsidiary right accruing under it which must become non-enforceable at the same time as the principal right.

The absence of a provision for extinction of a recurring right, when a suit to establish that right has become time-barred, does not, therefore, indicate that the remedy for enforcement of that right can be sought through courts even after the suit to establish that right has become time-barred. On this question about the effect of Article 131, Limitation Act, on a suit brought for recovery of money or for other relief on the basis of a periodically recurring right, learned counsel for the parties have drawn my attention to a number of decisions of various Courts. I now proceed to examine briefly those decisions in the chronological order in which they were given by the various Courts.

The earliest case cited before me is a decision of the Chief Court of Punjab reported in 63 Pun Re 1906 page 306 (P). A Division Bench of the Chief Court of Punjab had to consider the applicability of Articles 120 and 131 to a suit by the plaintiffs to recover arrears of 'Jagir' money which was payable by Government annually from the defendant who claimed to receive it under a decree obtained by him against a former grantee. The first question considered by the learned Judges was whether Article 131, Limitation Act, was applicable to the facts of that case. It was held:

'Clearly in its terms this article refers merely to a suit to establish a right of a periodically recurring nature, and the cause of action is the refusal of plaintiffs' enjoyment of such right. It does not in terms extend, and cannot, therefore, be extended, to cover cases in which a plaintiff seeks to recover specific sums of money due to him in respect of such recurring right, and we think that it is quite possible to conceive of cases in which two different periods of limitation would be applicable when the plaintiff seeks not only to establish his recurring right, but also to recover sums due to him upon the basis of that right.

In the present case, for example, while Article 131, Limitation Act, would apply to that part of the claim which seeks to establish plaintiffs' right to the Rs. 500/- accruing annually a right which defendant certainly did not admit, even if he did not, in so many words, expressly deny, we do not think that we could, without doing violence to the ordinary meaning of the words, hold that Article 131 equally applied even if plaintiff's recurring right had been admitted, to that part of the claim, which is concerned with plaintiffs' right to recover arrears due to them from defendant by virtue of their right to the said annual sum of Rs. 560/-.'

The reasoning given in the judgment shows that the learned Judges only considered one aspect of the question arising before them, viz., whether the suit itself was governed by Article 131 or by some other article which was held to be the residuary Article 120 in view of the fact that Article 132 or any other specific article was not applicable. I have already agreed with the view expressed in that case that such a suit to recover money would be governed not by Article 131 but by the appropriate article which applies to the actual relief claimed in the suit.

The other aspect as to whether, even if thesuit be within time, the relief claimed can orcannot he granted in view of the suit to establish the periodically recurring right being time-barred was not considered at all. I do not consider that, in these circumstances, this decision is of any material assistance. The decision in ILR 34 All 246 (j), is similar.

In that case also, it was decided that the words of Article 131 were altogether inapplicable to a suit to recover arrears of payments due under a registered contract and since Article 132 was held to be inapplicable, it was decided that the suit was governed by either Article 116 or Article 120. There was no discussion in the case on the question whether though the suit was governed by Article 116 or 120, the plaintiff was debarred from getting the decree sought by her because a suit for establishing the periodically recurring right, under which the money accrued had become time-barred. The decision of the Punjab Chief Court in the case of 83 Pun Re 1906 p. 306 (P), was relied upon, whereas two earlier decisions of the Madras High Court to the contrary in ILR 7 Mad 341 (Z4) and ILB 26 Mad 291 (Z50), were dissented from.

A Full Bench decision of the Madras High Court in ILR 38 Mad 916: (AIR 1914 Mad 377) (R), however, affirmed its old view in the two previous cases mentioned above. But the decision in that case proceeded on the basis that the matter had been res integra and the learned Chief Justice, who delivered the main judgment, expressed a doubt when he said that he would have been disposed to hold that Article 131 should be construed as applying to a suit brought for the purpose of obtaining an adjudication as to the existence of an alleged periodically recurring right, and not to a suit in which it was sought to recover moneys alleged to be due by reason of the alleged right. For a proper consideration of the question before me, this decision is also of little help.

The decision of the Patna High Court in AIR 1926 Pat 205 (K), is also on the same footing as the decisions of the Punjab Chief Court and the Allahabad High Court cited above. It was held :

'There is a vast distinction between a suit brought to establish a periodically recurring right and a suit brought to enforce payments due as remuneration for the performance of services arising out of that right.'

A comparison was made with Articles 128 and 129 and it was further held thatp2

'it is quite clear from a perusal of those articles, one of which applies to a suit by a Hindufor arrears of maintenance and the other by aHindu for a declaration of his right to maintenancethat the framers of this Act had clearly in mindthe distinction between a suit for a declarationof a right and a suit claiming arrears of remuneration arising out of the exercise of that right,and had it been the intention to include bothclasses of suits under Article 131, I think that we shouldhave found words appropriate to that effect. Itseems to me that Article 131 was intentionally drafted so as to include merely a suit to establish aright.'

Thus, in this case, the applicability of Article 131was considered only from the point of view whether the suit for recovery of arrears of money dueas remuneration for the performance of servicesarising out of a periodically recurring right couldas such be held to be governed by Article 131. Therewas no discussion as to whether, even if the suititself was governed by another Article, the effectof Article 131 on the right to claim relief under theperiodically recurring right was that no decree could be granted in respect of that money. The decision of the Bombay High Court in : AIR1931Bom189 , also proceeds on the same footing.

A learned Single Judge of the Patna High Court in AIR 1934 Pat 44 (L), also held that a suit to recover malikana is governed by Article 132 where the plaintiff seeks to recover it in respect of interest in land, and to such a suit Article 131 does not apply. The only argument, which was advanced before the learned Judge, was that the malikana had never been paid and, consequently, the suit to recover the arrears of malikana was in substance, although not in form, a suit for the establishment of this recurring right to malikana within the meaning of Article 131. This argument was rejected on the ground that, if the defendants intended that the action was barred under Article 131, it was necessary, in the circumstances of the case and having regard to the manner in which the plaintiff had brought his claim, for the defendants to establish such facts as would show that the action was, in fact, barred by limitation. The suit itself being clearly within Article 132, it was held that Article 131 was inapplicable. Once again, this case does not discuss at all the question whether, if the suit as framed is clearly under Article 132, the claim can fail on the ground that it is for enforcement of a periodically recurring right, in respect of which a suit to establish the right has become time-barred, even though the suit for recovery of arrears is within time under the appropriate article applicable.

In AIR 1936 Pat 158 (M), also, the view expressed by the Patna High Court in its earlier decision in AIR 1926 Pat 205 (K), was followed without giving any additional reasons. Another learned Single Judge of the Patna High Court in AIR 1941 Pat 201 (Y), expressed a view contrary to the earlier decisions of that Court mentioned above when, in an appeal arising out of a suit brought for recovery of bhaoli rent for two years and, in the alternative, for a fair and equitable rent, he held:

'In fact, they pleaded that they never paid any rent, and this plea was accepted by the assistant settlement officer. When therefore the assistant settlement officer passed the order dated 14-6-1918, the plaintiffs were 'first refused the enjoyment of the right' to realise rent. Thus Article 131, Limitation Act, clearly applies.'

For a proper examination of the question before me this case is also of no help. Though it supports the view taken by me, the decision contains no discussion justifying the view that Article 131 applied even when the suit was merely for recovery of bhaoli rent and did not include any prayer for a declaration that the plaintiffs had any such periodically recurring right or for the establishment of any such right. A Division Bench of the Bombay High Court in AIR 1947 Bom 451 (S), had before it an appeal arising out of a suit brought by the plaintiff-respondent to obtain a declaration that he had a right to a share in the Toda Giras allowance obtained by the defendants from the Government sub-treasury and for a permanent injunction directing the defendants, their heirs and descendants to pay to the plaintiff, his heirs and descendants a half share of whatever amount the defendants might receive in future as the said allowance and, further, for recovery of the sum of Rs. 8,396/8/- as arrears due to him with interest from the date of the suit as well as costs.

In that case, the plaintiff could not come to court without obtaining a certificate under Section 6,Pensions Act, but it was held that the question when it became possible for the plaintiff to file that suit could not affect the real starting point of limitation in the case, namely, when the plaintiff's enjoyment of the right claimed by him was first refused and that there was no reason to think that, because the plaintiff was enabled to file the suit only after obtaining the certificate under Section 6, Pensions Act, Article 131 did not apply to the facts of that case.

The decision, though in line with the view expressed by me above, is again of no assistance at all, as, in that case, there was a specific prayer for a declaration by the plaintiff that he had the right which was a periodically recurring right and there could be no doubt that, while there was such a prayer, Article 131, Limitation Act, applied not only in principle but in terms.

Fazl Ali, C. J., with whom Ray, J., agreed, had to consider a similar question in AIR 1947 Pat 47 (W). That suit was brought by the plaintiff-respondents to recover from the defendant-appellant a sum of Rs. 9,500/- on account of arrears. of certain maintenance allowance which, according to the plaintiffs, was payable to them under a will.

Two principal questions, which arose for decision in the appeal, were (1) whether the defendant was bound by the terms of the will; and (2) whether the suit was barred by limitation. It was held that the first question became immaterial because, upon the evidence on the record the suit had to be held to be barred by limitation, on the second question the contention on one side was that the suit was governed by Article 123 whereas, on the other side, Article 131 was sought to be applied, Fazl Ali, C. J., held:

'I am, however, of the opinion that the article which is applicable to the present case is Article 131 under which a suit to establish a periodically recurring right has to be brought within 12 years from the date when the plaintiff is first refused the enjoyment of the right. It may be conceded, that the annuity which the plaintiffs claimed was in the nature of a legacy and if the right to receive the legacy had not been repudiated more than 12 years before the institution of the suit, Article 123 could be applied. But once the right to receive a recurring payment is repudiated, then, in my opinion, Article 131 must be held to be the appropriate article.

On principle it seems to me to be illogical to hold that, even though the person whose right to annuity, whether it is payable as a legacy or otherwise, has been denied or repudiated has taken no action for more than 12 years since the denial or repudiation, he may still enforce his right after the lapse of many 'years beyond the expiry of the period of limitation fixed under Article 131 and say that under Article 123 he is entitled to the annuity for the last 12 years.'

Fazl Ali, C. J., thus applied in that case the principle' which was brought out by Sulaiman, C. J. and Bajpai, J. in : AIR1937All57 , though that case was not specifically referred to and followed. This case supports the view taken by me above that it would not be a proper interpretation of the Indian Limitation Act to hold that a person, who had been refused the enjoyment of a periodically recurring right and had taken no action for more than 12 years, should be allowed the enjoyment of that right by decreeing in his favour a suit is recover arrears of money claimed under that right and that, in such cases, effect should be given to the provisions of Article 131.

149. Besides these cases, which deal directly with the applicability of Article 131 in cases where the suit is brought for enforcement of a claim arising under a periodically recurring right, reference was also made to a decision of their Lordships of the Privy Council in . In that case, one of the main questions, that came up for decision by their Lordships of the Privy Council, was with regard to the title of the respondent who had brought a suit for possession of certain properties against the appellant.

The title was claimed on various grounds, almost all of which were negatived by the Privy Council. Consequently, the question of the right of the respondent to bring, the suit for possession was considered by their Lordships of the Privy Council on the assumption that, by reason of a contract, the properties were impressed with a continuing trust in favour of the respondent and the appellant was holding the properties as a trustee. Dealing with this aspect of the case, their Lordships of the Privy Council observed:

'Their Lordships are unable to hold that this would entitle him to sue for possession as 'owner' The Indian Law does not recognise legal and equitable estates; Jatindramohan Tagore v. Ganendramohan Tagore, IA Sup. Vol., 47 (PC) (Z51) and Webb v. Macpherson, 30 Ind App 238 at p. 245 (PC) (Z 52). By that law, therefore, there can be but one 'owner', and where the property is vested in a trustee, the 'owner' must, their Lordships think, be the trustee. This is the view embodied in the Indian Trusts Act, 1882; see sections 2, 55, 56, etc. The Act was only extended to Bengal in 1913, and it has been assumed at the Bar that it would accordingly have no application to the present case.

Their Lordships are not satisfied that this isnecessarily correct having regard to the savingclause at the end of Section 1 of the Act, but theythink that the question is of no importance in thepresent case, as the material provisions of the Act,only embody the principles upon which the lawhas been administered in India from very earlytimes. The trustee is, in their Lordships' opinion,the 'owner' of the trust property, the right of thebeneficiary being in a proper case to call upon,the trustee to convey to him. The enforcementof this right would, their Lordships think, be barredafter six years under Article 120, Limitation Act,and if the beneficiary has allowed this period toexpire without suing, he cannot afterwards file apossessory suit, as until conveyance he is not theowner.

It is clear that such a trust as is relied upon in the present case would not fall within Section 10, Limitation Act, as it would be impossible to hold that the properties which vested in the appellant under the terms of the will which have been proved were so vested for the specific purpose of making them over to the respondent: see per Lord Buckmaster in Khaw Sim Tek v. Chuah Hooi. 49 Ind App 37 at p. 43: (AIR 1922 PC 212 at P. 214) (Z53). Indeed this argument has hardly been pressed before the Board. For the reasons given, their Lordships are unable to accede to the view taken by the Indian Courts that the somewhat indeterminate contract which they held to be established between the Raja and the natural father of the respondent, gave him a title as owner of the properties which he claimed.'

'Their Lordships have no doubt that under the two wills which have been admitted to pro-bate, all the estate of the Raja was legally vested in the appellant, and that on the assumption that the assessment upon which the respondent has re-lied before them was proved, the rights of the respondent were barred at the time when he instituted his suit.'

The principle laid down by their Lordships of the Privy Council thus, was that, if a suit for possession of property was brought by a person who, at the date of the suit, was himself not the owner and whose right to acquire the ownership by conveyance was barred by limitation, he could not succeed in the suit for possession. Learned counsel for the appellants sought to infer a general principle from this decision to the effect that, whenever a suit to establish aright has become time-barred, the suit brought by the holder of the right to enforce other rights accruing under the former right cannot succeed. In appears to the that there is hardly any justification for extending the principle laid down by their Lordships of the Privy Council to such an extent.

The suit for possession was held by their Lordships of the Privy Council to be non-maintainable on the ground that the person suing for possession was not the owner on the date of the suit and his right to acquire title had become time-barred and not on the ground that he did possess the right of ownership and had merely lost his right to bring a suit to establish such ownership. In my opinion, therefore, this case is not of much, assistance but, in any case, there is nothing in this case which militates against the view taken by me earlier that a person, who had been refused the enjoyment of a periodically recurring Tight and had not brought a suit for more than 12 years to establish such a right, cannot be allowed the aid of Courts to enforce payment under such a right.

150. Since I have held that Article 131, Limitation Act, is applicable on the assumption that the right, for the enforcement of which the present suit was brought, was a periodically recurring right and the plaintiff-respondents were first refused the enjoyment of that right more than 12 years before the institution of the suit, it is now necessary to proceed to consider whether all the ingredients of this assumption have been established in this case. It was urged by learned counsel for the appellants that the burden lay on the plaintiff-respondents to plead and prove all facts necessary which would entitle them to claim that their suit is within time, so that the burden should be placed on the plaintiff-respondents to establish that the suit did not relate to a periodically recurring, right, or that any other ingredient necessary for Article 131 to be applicable is missing.

This argument was advanced on the basis of the language of Section 3, limitation Act, and of Rule 6 of Order VII. Code of Civil Procedure. Under Section 3, Limitation Act, every suit instituted after the Period of limitation prescribed therefor by the first schedule of the Act has to be dismissed, although, limitation may not have been set up as a defence. Under Rule 6 of Order VII, Civil P. C. where the suit has been instituted after the expiration of the period prescribed by the law of limitation, the plaint should show the ground upon which exemption from such law is claimed. These provisions of law do not, in my opinion, justify the view that it was for the plaintiff-respondents to plead the facts which would show that the relief claimed by them could be granted in the suit even if Article 131, Limitation Act, was applicable.

I have already mentioned earlier that the suit, as framed, fell within the purview of Article 132and it appears to me that the only duty cast on the plaintiff-respondents was to plead facts to show that this suit had been instituted within the period of limitation prescribed for such a suit in the first schedule of the Indian Limitation Act. The plaintiffs did comply with this requirement. Facts were pleaded to show that the suit was for the enforcement of payments of money charged upon immovable property and that the cause of action for enforcement of the payments claimed, had arisen within 12 years of the institution of the suit. The plaintiffs having pleaded these facts, they discharged the burden which lay on them to show that under Section 3, Limitation Act, the suit was maintainable.

It was not a case where the suit was institute ed after the period of limitation prescribed for the suit by the Law of Limitation and, consequently, Rule 6 of Order VII, Civil P. C., was inapplicable. The plaintiff-respondents were not claiming any exemption from the Law of Limitation when they brought the suit. On the other hand, the defendant-appellants contested the right of the plaintiff-respondents to obtain a decree even though the suit, as framed, was governed by Article 132 on the ground that Article 131 had the effect of barring such a claim being allowed by the courts. In such a case, the law of pleading, as laid down in Rule 2 of Order VIII, Civil P. C., will apply where the burden is laid on the defendant to raise by his pleadings all matters which show the suit not to be maintainable and all such grounds of defence which, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as for instance, fraud, limitation, release, payment, performance or facts showing illegality.

This rule clearly mentions that Issues of fact not arising out of a plaint including those relating to limitation have to be set up as defence by the defendant In his pleading. Consequently, once the Suit was properly framed by the plaintiff-respondents, indicating that it was within time under Article 132, it was for the defendant-appellants to plead facts which would bring into play some rule of limitation according to which the plaintiff-respondents could not claim the decree sought by them. The defendant-appellants did, in their written statement, raise the plea that the present suit was barred under Article 131, Limitation Act, and it is, consequently, for the defendant-appellants to establish all the ingredients necessary to apply this article to the present suit. The defendant-appellants have to show :

1. That the right, for the enforcement of which the suit has been brought, is a periodically recurring right;

2. that the enjoyment of that right was refused;

3. that the refusal was by the defendant-appellants;

4. that the refusal was to the plaintiff-respondents; and

5. that this refusal was more than 12 years prior to the institution of the suit. Those are the various ingredients which had to be established by the defendant-appellants in support of their contention that the present suit could not be decreed in favour of the plaintiff-respondents against them.

151. Taking up the first question whether the suit relates to a periodically recurring rights or not we have to go back to the arbitration award of 26-7-1897. Upto the time that the award wasgiven, Allauddin, Bahauddin, Muhammad Zakaria and Srimati Hidayatunnissa had a share in the property which had been left by Zahiruddin. By that award, this right of ownership in the property was taken away and the entire property was given to Ziaullah. In lieu of their right to the property, these four persons were given the right to receive a sum of Rs. 750/- per annum in specified amounts.

This sum was described as ulufa. The sum was also to be a charge on the property left by Zahiruddin which was given to Ziaullah. In the subsequent award of 13-9-1901, the decisions in the former award were upheld. The right granted to Allauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa was thus a right to receive an annual payment and in case the annual payment was not made, they could enforce the payment as a charge on the property allotted to Ziaullah. Prima facie, this right to receive a sum annually was a periodically recurring right.

The right arose on the 30th of June every year and this right could be enforced as a charge on the property. It has been urged by learned counsel for the plaintiff-respondents before me that this right, for the enforcement of which the present suit has been brought, amounted to an interest in immovable property and could not, therefore, be a recurring right. In support of the view that this right was an interest in immoveable property, learned counsel referred me to a decision of the Privy Council and to two decisions of this Court.

In the case of 1 Ind App 34 (PC) (Z27), the suit was brought to establish a right to, and recover the possession and enjoyment of a certain ancestral and hereditary huq or right called a toda giras huq, of the annual amount of Rs. 501, issuing out of village Kalam and payable out of its revenues by the respondent, as inamdar thereof, to the appellant as girasia proprietor, and also to recover the arrears of the said toda giras huq which had accrued preceding the institution of the suit, and interest upon such arrears. Under the toda giras huq, which came up for consideration in that case, the appellant was entitled to annual payments.

It was found that toda giras huqs constituted a recognised species of property capable of alienation, and of seizure and sale under an execution. It was, consequently, held that the suit was one for recovery of an interest in immoveable property. That case is not applicable to the case before me as, in the present case, the right, which was granted to Allauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa, has not been found to be capable of alienation and liable to seizure and sale under an execution.

The earlier of the two Allahabad cases, viz., ILR 9 All 591 (Z26), is, however, much more to the point. In that case, one Sheo Charan, who had a one-third share in certain lands, sold his interests to one Mahipat Singh and in the sale-deed, laid down that he and his heirs would have no further connection with the property, so that the said vendee was at liberty either to retain possession himself or to sell it to some one else but he was to pay a sum of Rs. 25/- annually as malikana to Sheo Charan.

It was held that the words 'as malikana' in the deed of sale were not inserted in the sale-deed without an object and could not be rejected as surplusage and that they clearly indicated that the payment of Rs. 25/- was intended by Sheo Charan and Mahipat Singh to be annual charge on the property and the profits arising therefrom, analogous to that of a malikana reserved on a settle-merit by a Government Settlement Officer for a Zamindar and that it was intended by the use of these words to reserve and create a perpetual and hereditary charge upon the property.

In the case before me, the right to receive annual payment granted to Allauddin, Bahauddin. Muhammad Zakaria and Shrimati Hidayatunnissa was also heritable and a charge was created on the property in respect of it. According to the decision, of this Court in that case, the right in question in the present suit is a perpetual and hereditary right and it does amount to an interest in the, property.

The later Allahabad case was a decision by a learned Single Judge in : AIR1929All737 , in which, at the time of partition, a village was given to one co-sharer and, in order to equalise the shares, it was arranged that this co-sharer was to pay a certain sum from its profits annually to the other co-sharers. It was agreed that the sum should be paid by the person in possession for the time being of that village and that the other co-sharers had a right to recover the sum.It was held that the malikana, reserved in that case, amounted to an interest in land and was a much higher right than a mere charge in favour of the other co-sharers. The decisions in these cases do support the view that the right in question before me. amounts to an interest in land but this does not dispose of the question whether it is a periodically recurring right or not. Even an interest in land may be periodically recurring.

A person may have no interest in land all the time but the right may accrue to him periodically at intervals in which case the right would be a periodically recurring right even though it may also amount to an interest in land. In the present case Allauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa had a share in the immovable property before the award.

After the award that interest of theirs ceased to exist and, consequently, thereafter they did not have any constant interest in that property. In lieu of their previous interest in the property, they were granted the right to receive payment of ulufa which was to be payable on 30th June every year as is the common case of all the parties. Until the right to receive the payment accrued to them, they had no claim against the property or any interest in the property.

Every year on the 30th of June, however, the moment the right to receive ulufa money accrued to them, they also acquired with that right the right to enforce payment of that money as a charge against the property. These facts lead to the inference that the interest in immoveable property, which vested in them, also accrued to them, at the same time and simultaneously with the accrual of the right to receive ulufa money.

In this case, therefore, the interest in property accruing to these persons was also periodical and recurring just as the right to receive ulufa money, and this interest in Immoveable property was an off-shoot of, or a right arising from the right to receive ulufa money periodically. Therefore, the mere fact that the right to receive ulufa money also brought into existence an interest in immoveable property with it cannot necessarily lead to the conclusion that both the rights were constant and continuous rights and were not periodically recurring rights.

152. The possibility of a party having recurring or successive causes of action, even where the causes of action arise out of interest in immoveable property was recognised by Fazl Ali J., with whom Macpherson J., agreed, in AIR 1931 Pat 285 (Z28). In that case, the plaintiff-respondents had brought a suit for payment of money secured under a registered mortgage bond executed by the father of the appellant.

Under the terms of the mortgage bond the money was payable in 18 yearly instalments of Rs. 50/- each and it was also provided that, if there was default in the payment of any of the Instalments, all the instalments, whether expired or unexpired, were to be payable by the mortgagor and he was also to pay interest thereon at the rate of Re. 1/- per cent. per month.

The finding of fact was that the earliest default in the payment of the instalments had occurred more than 12 years before the institution of the suit and the question arose whether under Article 132, Limitation Act, the money sought to be recovered must be held to have become due on the occurrence of the first default, or, whether the subsequent defaults gave fresh and successive causes of action. Fazl Ali J., held:

'The question then arises whether it would make any difference, if having practically provided for a due date the mortgagee for his own benefit inserts in the bond a condition that it will be open to him to call in the entire money if the debtor makes default in the payment of any of the instalments fixed.

Such a condition is expressed in a variety of ways in different bonds and sometimes express words such as 'the mortgagee will be at liberty to sue', or that the money will be paid when required', or 'on demand' are used to emphasise that the matter is left entirely at the option of the mortgagee. At the same time I think that, even without the use of any such words, it may be implied in certain cases that the mortgagee has been given a complete option.

Thus the effect of such a stipulation is that under the terms of the bond the mortgagee has successive or recurring causes of action and it is left to his option to avail himself of any one of these causes of action and base his suit upon any of them. Now supposing that the parties agree in clear terms that it will rest with the mortgagee to decide whether he should sue as soon as there is default in the payment of any of the instalments or on the expiry of the due date fixed for the payment of the entire debt and that he is under no obligation to avail himself of the earlier cause of action, I do not see how Article 132 will bar his claim ................

The notion of continuing or successive causes of action is not entirely foreign to the Limitation Act as will appear from Section 23 and Article 116, Limitation Act. Where therefore a party has recurring or successive causes of action whether under the terms of contract or by operation of law, each cause of action will in my opinion give a fresh start to the period of limitation and the mere fact that a party has not availed himself of the earlier cause of action, will not prevent him from availing himself of a later one.' This decision by Fazl Ali J., thus affirms the principle that the notion of continuing or successive causes of action is contemplated by the Indian Limitation Act and such recurring or successive causes of action can arise even in respect-of the rights of a mortgagee to immoveable property. 'The right to recover mortgage-money can thus itself be a periodically recurring right andthe suit for recovery of the money can be based on any of the causes of action accruing at any time when the periodically recurring right to recover the mortgage-money accrues.

In , their Lordships of the Privy Council had before them a case where, originally, an ancestor of the plaintiff had been granted a right in perpetuity to collect the revenue of two divisions and the remuneration for this hereditary office was fixed at a certain percentage of the government assessment. The British Government acquired that territory in 1817 and, later on, the Government enforced compulsorily, by a resolution, commutation or non-service settlement on the plaintiff and his predecessor under which the hereditary office was superseded and the plaintiff or his predecessor only became entitled to receive Rs. 1/5/- per cent of the Government assessment.

Later, the Government took further action in the matter by working out the average amount paid to the district hereditary officers over a period of five years and by fixing the resulting amount as the annual sum to be paid irrespective of what the Government assessment might be from time to time. In the case of the plain-tiff, the fixed sum was Rs. 642/-. In 1916 the plaintiff had filed a suit against the Secretary of State for India in Council, claiming that. In regard to one village, he was entitled to his percentage on the assessment from time to time but that suit was dismissed on technical grounds, viz., that it was not maintainable without a certificate under the Pensions Act, 1871.

Subsequently, the plaintiff obtained a certificate and brought the suit out of which the appeal went up before the Privy Council in the year 1923. In that suit, the plaintiff claimed a declaration of his rights and payment of a sum calculated upon the footing that he was entitled to receive a percentage of the amount of government assessment for the time being. Various questions arose in that suit. One principal point, that came up for decision of their Lordships of the Privy Council was whether the plaintiff was entitled to receive a percentage of the amount of government assessment for the time being, or whether he could only claim a fixed sum.

Their Lordships held that the plaintiff was entitled to claim the variable amount calculated on the basis of the percentage of the amount of Government assessment for the time being. There also arose for consideration the question of limitation. It was pleaded that the suit was barred under Articles 14 and 131, Limitation Act. Their Lordships held:

'Article 14 has, their Lordships think, clearly no application, for the plaintiff is not seeking to set aside any act or order. Nor does Article 131 bar the plaintiff's suit, because in the view of their Lordships there was no refusal within the meaning of that article before, at the earliest, 1913, and the present suit was Instituted well within the period of 12 years from that year.

Before their Lordships' Board, the defendant argued that the case fell within Article 120. Their Lordships, however, feel no doubt that the appropriate article is Article 131 and that this suit has been instituted within the requisite period of time.'

It will be noticed that, in that case also, the right to receive the annual payment as a percentage of the Government assessment for the time being arose out of a perpetual and hereditary right to collect revenues which had vested in the plaintiff's predecessor-in-interest. Thathereditary and perpetual right was substituted bya right to receive annual payment from the Govt., calculated on the basis of the percentage of Government assessment and this right could also be exercised by the plaintiff and his successors-in-interest perpetually.

The right thus arose out of an original interest in land which was a perpetual right. Even subsequently, the right to receive the payment was perpetual but it accrued once every year. It was held by their Lordships of the Privy Council that such a right was a periodically recurring right and the suit in respect of it was governed by Article 131, Limitation Act.

The next case, which I come to, is the decision of a Division Bench of this Court in : AIR1937All57 . This case has already been referred to by me earlier. The plaintiff's, in that suit clearly had an interest in land and it was by virtue of that interest in land that they brought the suit for recovery of parjot or ground rent in respect of the site of the house occupied by the defendants.

Their right in the land constituting the site of the house was thus a perpetual and constant right but the right to receive ground rent was a periodically recurring right as it was claimed that the ground rent became payable once every year. That was clearly a case where the periodically recurring right to receive ground rent arose out of a perpetual and constant right to the land and it was held by this Court that the suit to enforce the payment of ground rent was a suit for enforcement of a periodically recurring right.

This case thus clearly illustrates the view expressed by me above that, even if a right to 'receive payment every year arises out of a perpetual and constant interest in land or immovable property, the right to enforce payment of money periodically accruing must be held to be a periodically recurring right. In the present case also, the right to recover ulufa money accrues every year and, even though it arises out of interest in land, it must be held to be a periodically recurring right.

153. Learned counsel for the plaintiff-respondents placed reliance on a number of cases decided by this Court and the High Courts of Madras, Lahore and Patna which I now proceed to examine. The earliest case referred to by learned counsel is a decision of a Division Bench of this Court in ILR 34 All 246 (J), which has already been noticed above.

In that case, the plaintiff had claimed only a personal decree against the defendant for arrears of sums of money payable out of income of certain immovable property which right arose out of a contract. It was urged before the Bench which decided that case, that, since Article 132 did not apply, the proper article applicable was Article 131. The Bench did not accept this contention and held:

'It seems to us that the language of Article 131 'to establish a periodically recurring right' is altogether inapplicable to a suit to, recover arrears of payment due under a registered contract such as we have in the present case.'

From this language used by the learned Judges an inference is sought to be drawn that they purported to lay down that that particular suit was not in respect of a periodically recurring right at all, so that the right to receive money annually under a contract was held not to be a periodically recurring right. I am unable to accept this interpretation of the view of the Bench.

In giving their decision in the language quoted above, the learned Judges, in my opinion, were emphasising the distinction between a suitto establish a periodically recurring right governed by Article 131 and a suit to recover money to which the plaintiff had become entitled periodically. It was on the ground that it was not a suit to establish the right to recover money under that right that the Bench held that Article 131 was inapplicable. That aspect of that decision I have already discussed above. The question whether the right to recover money was a periodically recurring right or not was not examined and decided by that Bench at all.

The decision of the Full Bench of the Maddras High Court in ILR 38 Mad 916: (AIR 1914 Mad 377) (R), was given in a suit for recovery of adima allowance for a period of eight years with interest. In that case a distinction was drawn between a suit brought for the purpose of obtaining an adjudication as to the existence of an alleged periodically recurring right and a suit in which it was sought to recover money alleged to be due by reason of the alleged right.

The decision proceeded on the basis that that suit was for recovery of moneys due under a periodically recurring right and does not, therefore, assist me in deciding whether a suit of the nature before me is for recovery of money due under a periodically recurring right or not.

Great reliance has been placed by learned counsel for the plaintiff-respondents on a decision of a Division Bench of the Madras High Court in AIR 1920 Mad 447 (1) (T). That was a case where the plaintiff had brought a suit for a declaration that he was the mutwalli of a mosque and was entitled to draw the yeomiah allowance received by the defendant, a rival claimant, in the year 1914. The question arose whether the suit for the recovery of yeomiah allowance was barred under Article 131, Limitation Act. Their Lordships held :

'It appears to us that that article is not applicable at all. What the plaintiff claims, apart altogether from the claim for a declaration that he is the mutwalli, is that he is perpetually entitled to receive all the yeomiah allowances that ever accrued. It seems to us that that is not a periodically recurring right but a perpetual right. The mere fact that sums of money are paid periodically does not make the right one that periodically recurs. The right is always there, but it is only exercised at such times as the sums fall due.'

With all respect, it appears to me that the distinction drawn between a periodically recurring right and a perpetual right is hardly appropriate because, as I have already stated above, even a periodically recurring right can be a perpetual right in the sense that, though it may accrue at fixed intervals, the accrual at those intervals may go on perpetually.

The question whether a right is a periodically recurring right cannot depend on the right continuing to accrue in perpetuity. In my opinion, the aspect, that has to be examined, is whether the right accrues at specified intervals or the right continues to accrue from day to day constantly. In the case before the Madras High Court the claim was for yeomiah allowances which used to be collected every day. Once collected, the plaintiff became entitled to them though he could not bring a suit for them immediately.

The right to the yeomiah allowance was, therefore, a continuous and constant right accruing all the time to the plaintiff and, consequently, the decision by the Madras High Court that it was not a periodically recurring right was, I may say with respect, perfectly correct. In dealing with that case, the learned Judges, in orderto bring out the distinction, held :

'In the one case the right is always vested in one person to receive periodical payments; in the other, the right which at one time is vested in one person, at another time passes away to. somebody else, which, of course, is a periodically recurring right, in the true sense of the term'.

I have to say once again with respect that I am unable to agree with this view. It is not necessary for a right to be a periodically recurring right that it must vest at one time in one person and at another time it must pass on to somebody else. Even if the right continues to accrue to the same person but such accrual takes place at fixed intervals of time, it would be a case of a periodically recurring right and not a constant or continuous right.

The learned Judges also took an illustration of an official entitled to a salary of so many rupees a month and held that it would be as reasonable to hold the right to salary in such a case to be a periodically recurring right as to hold that the right to yeomiah allowance was a periodically recurring right. This comparison drawn by the learned Judges was appropriate for that case, because, even in the case of salary of an official, the official earns his salary every day when he carries out his duties, even though his right to receive the salary may accrue to him at the end of each month.

In the case before me, the right to ulufa money did not, under, the terms of the award, accrue every day to Allauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa. That right vested in them only on 30th June every year, so that the case before me is distinguishable from the case of yeomiah allowance dealt with by the Madras High Court in the case cited above and from the illustration of salary of an official quoted as an example by the learned Judges in that case.

The language of the award in the case before me clearly is that Allauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa agreed to take a specified sum of money in cash annually, instalment by instalment, in lieu of the legal right and share of Shrimati Tahira Bibi. The award did not lay down that, in lieu of their legal right and share in the property, there would accrue to them any sum from day to day throughout a year which would become payable to them at the end of the year.

Reliance was also placed by learned counsel for the plaintiff-respondents on a decision of a Division Bench of the Lahore High Court in AIR 1921 Lah 121 (2) (O). The suits, out of which the appeals arose, were brought by the plaintiff-respondent for recovery from the defendant-appellant of the amounts alleged to be due on account of maintenance for the 12 years preceding the suit and for possession of residential houses. Dealing with the question of limitation, the learned Judges held:

'In our opinion it is very doubtful whether maintenance can be strictly called a periodically recurring right. A fight of maintenance appears to us to be a right which accrues on the happening of a certain event and to be not a recurring right but a constant right till the happening of some other event which determines it.

No doubt the right to recover maintenance is a recurring right unless maintenance is fixedby the parties at one consolidated sum but there is a great difference between a suit to establish maintenance and a suit to recover arrears of maintenance, and, even if we held that Art131 would govern a suit to establish a right of maintenance, we should be quite unable to hold it applicable to a suit to recover arrears of maintenance.'

It will be noticed that the learned Judges themselves drew a distinction between a suit to establish maintenance and a suit to recover arrears of maintenance and it was recognised that the right to recover maintenance can be a recurring right. It was, however, laid down that a right to recover arrears of maintenance would cease to be a recurring right if maintenance is fixed by the parties at one consolidated sum.

With this latter part of the principle laid down by the learned Judges, I find myself unable to agree. The question whether a right is a recurring right or a constant right cannot be affected by the circumstance whether the amount claimed in enforcement of the right is a variable or fixed sum. In my opinion, if a right to recover, a sum of money accrues at fixed intervals of time, the right would be a periodically recurring right irrespective of the question whether the sum to be recovered is a fixed sum realizable every year or varies from year to year.

The variation in the sum of money recoverable may make the right a variable right. The criterion for determining whether the right is a periodically recurring right cannot depend on the amount recoverable being variable.

A learned Single Judge of the Madras HighCourt in : AIR1936Mad704 had to considerthe nature of a right to recover from a Zamindaran annual allowance from and out of the revenuecollections. On the basis of the earlier decision ofthe Madras High Court cited above, AIR 1920Mad 447 (1) (T), it was urged before him that theright, which was being claimed, was a perpetualright.

The learned Judge pointed out that even according to the defendant himself, what was claimed in the suit was a grant of the assessment and his case was that this was to be availed of by the grantee by asking the Zamindar to forbear from collecting the assessment and not by claiming a cash payment from the Zamindar. The right was obviously one to recover a certain sum of money out of the revenue collections of the village. In other words, the right claimed was a right to receive annual payment and it was not alleged that the payment was subject to performance of any service.

The allowances claimed were therefore, held to be similar to the allowances that were the subject-matter of the Pull Bench decision of the Madras High. Court in ILR 38 Mad 916: (AIR 1914 Mad 377) (R) and, consequently, it was held that the suit was to recover money under a periodically recurring right.

Reliance was also placed in that case on an earlier decision Of the Madras High Court in ILR 7 Mad 341 (Z4) and a decision of the Bombay High Court reported in Sakharam Hari v. Laxmipriya Tirtha Swami, ILR 34 Bom 349 (Z54). Reliance was also placed on a decision of their Lordships of the Privy Council in mentioned by me above.

A learned Single Judge of the Patna High Court in AIR 1941 Pat 201 (Y) had before him an appeal arising out of a suit brought by the proprietors of certain land claiming bhaoli rent inrespect of that land of which they were the proprietors. The tenants denied that they were liable to pay bhaoli rent and pleaded that they never paid any such rent, though they did not deny the proprietary rights of the plaintiffs.

There Was an alternative prayer for assessment of fair and equitable rent. In that suit, the plaintiffs were claiming bhaoli rent not for the trees standing on the land but for the land of which they were the proprietors. The defendants denied their liability to bhaoli rent by alleging that they were not liable to pay any such rent at all. Before the Assistant Settlement Officer they pleaded that they had never paid any such rent and that was accepted by the Assistant Settlement Officer who passed an order striking off the bhaoli entry.

In these circumstances, Article 131, limitation Act, clearly applied. The suit to recover bhaoli rent was thus held to be a suit governed by Article 131 of the Limitation Act, so that the right to claim bhaoli rent was held to be a periodically recurring right.

Finally, learned counsel for the plaintiff-respondents relied on a decision of a learned Single Judge of the Madras High Court in : AIR1945Mad20 . The learned Judge held:

'A perpetual right to receive year after year a particular sum of money is not a periodically recurring right. The quantum of the right is there defined once and for all. It is payable every year. In such a case it is a perpetual right and not a periodically recurring right. In the case of a periodically recurring right, it must vary according to the circumstances each time it accrues.

For example, if the right is to recover certain allowances from, and out of the revenues or the income of a particular property, then it may be said to be a periodically recurring right. If the right is to recover from the revenue either a percentage of the collections, or a fixed sum of money out of the collections, it is obvious that the quantum of the right will vary according to the collections. If there are no collections then there will be no right to recover for that year. If the collections come to a particular figure, then the right cannot be to recover anything more than that sum.'

It was held on this reasoning that, where there is an obligation to pay a fixed sum not dependant upon the varying circumstances of each year, it cannot possibly be said to be a periodically recurring right. This decision only re-affirms the view expressed by the same Court in ILR 38 Mad 916: (AIR 1914 Mad 377) (R) I have already given my reasons for my inability to accept this view.

The expression used in Article 131 in column 1 of the First Schedule of the Limitation Act is 'a periodically recurring right.' Consequently, only two ingredients are necessary to make Art 131 applicable: Firstly, there should be a right and secondly it should be periodically recurring. The right may arise perpetually, at specified intervals or may arise for a number of years and cease thereafter.

That would be immaterial. Similarly, the amount, which accrues under that right would be immaterial in interpreting the expression used in the Act. The amount may be a fixed amount or a variable amount. If the right to receive an amount accrues periodically, it would be a periodically recurring right whether that amount be fixed or variable.

In the present case, the amount, which under the award, was payable to Allauddin Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa, was, no doubt, a fixed amount but the right to receive that amount only accrued to them once a year on 30th June and did not accrue from day to day throughout the year. It must, therefore, be held that, in this case, the suit, which has been brought, is a suit for enforcement of payment of money under a recurring right. In this connection, the exact language of the words used in Article 132 will be helpful.

That article lays down the period of limitation for a suit 'to enforce payment of money charged upon immovable property'. The present suit is clearly of that nature. The question that arises is whether the right to enforce payment of money charged upon immovable property is a periodically recurring right or not. Under the award, it is perfectly clear that the right to enforce payment of ulufa money, which was a charge on immovable property, could only accrue on 30th June each year.

The suit is, therefore, in respect of a right which accrued periodically. The position may possibly have been different if, in this article, the words used had been 'for money charged upon immovable property' instead of 'to enforce payment of money charged upon immovable property'. The right to money charged upon immovable property accruing to Allauddin, Bahadduin, Muhammad Zakaria and Shrimati Hidayatunnissa may possibly be held not to be a periodically recurring right but this is a question which I need not enter into.

The present suit is a suit to enforce payment of money charged upon immovable property and the enforcement of payment can only be claimed when the right to enforce the payment has accrued. There can be no doubt that the right to enforce payment of the money claimed in the present suit accrued to the plaintiff-respondents under the award only on 30th June each year.

This is, therefore, certainly a suit to enforce a periodically recurring right, so that the, first essential ingredient, which the defendant-appellants had to establish in support of their contention that Article 131 of the Indian Limitation Act must be given effect to in the present suit, has been proved.

154. The next point to be considered is whether there was refusal of enjoyment of this recurring right. There has been considerable argument on the interpretation of the words 'refusal of enjoyment of the right'. It has been urged on behalf of the respondents that there can be no refusal of enjoyment of a right unless there is a demand, so that Article 131, Limitation Act, only contemplates cases where there is first a demand by the person who desires to exercise the right and that is followed by a refusal of the enjoyment by the other party.

In order to interpret properly the words used in Article 131, it would be profitable to examine the language of the various articles in the Indian Limitation Act in which the words 'demand or refusal' have been used. It is to be noted that in Article 131 the word 'demand' is not used at all. All that the Legislature laid down in that article was that the period of limitation was to begin to run when 'the plaintiff is first refused the enjoyment of the right.'

Similarly, there are other articles where the word 'refusal' has been used without, at the same time, using the word 'demand'. In other articles, however, the word 'refusal' or 'refused' is used in conjunction with the word 'demand' and, in somecases, the word used is 'denial' and not 'refusal'. In Article 78, a payee suing against the drawer of a bill of exchange which has been dishonoured by non-acceptance has been granted three years' period of limitation from 'the date of the refusal to accept' for a suit on the basis of the bill of exchange.

In Article 78, therefore, like Article 131, there has to be a mere refusal to accept and there is no mention that there must have been a demand before the refusal. Under Article 113 however, a suit for specific performance of a contract has to be brought within three years of the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.

In this case, notice to the plaintiff for refusal of performance has been made an essential ingredient. Under Article 88, a suit against a factor for an account has to be brought within three years from the time when the account is 'demanded' and 'refused'. In this article, a demand before refusal has been specifically, laid down. Exactly similar is the language used in Article 89. Similarly, under Article 103, the suit by a Muhammadan for exigible dower has to be brought within three years of the time when the dower is 'demanded' and 'refused'. The language used in Articles 88, 89' and 103 shows that, where the Legislature considered that the refusal should follow a demand, the language used made it specific and clear. No expression was used in Article 131 similar to that used in these articles, which indicates that, under Article 131, it was not intended that the refusal of enjoyment must necessarily follow a demand. Similarly, the word 'demand' was not used in Article 78 or Article 18.

It does not, therefore, appear to be fully justified to read in Articles 18, 78 or 131 the requirement that the refusal must follow a demand and that, if there is refusal without a demand, the period of limitation will not start running at all. Article 60 is an example of a case where the Legislature merely required the making of a demand and did not prescribe the further requirement of a refusal. Then there are various articles in which the word used is 'denial'. Refusal and denial must also, therefore, be treated as two distinct and different acts. In these circumstances, it appears to me that the correct interpretation of the language of Article 131 would be not to read in it the necessity of a demand before a refusal of the enjoyment of the right can take place but, at the same time, such circumstances must come into existence that there should be an occasion to refuse the enjoyment of the right.

In this view, I am inclined to hold, that there, can be a refusal of the enjoyment of the right' giving a start to the period of limitation under. Article 131 whenever there is either a demand by the holder of the right, or an occasion otherwise arises for refusal of enjoyment of the right such as an attempt by the holder of the right to exercise it even though that attempt may not be directly in the form of a demand. A very simple example may be taken: Suppose a person has a right to enter a hall which is guarded by the opposite party.

There can be a refusal of enjoyment of that right if that person demands admittance in the hall but is refused admittance. In another case, he may not make a specific demand but may attempt to exercise that right by entering that hall. The other party may prevent his entry by closing the door of the hall, so that he has to turn back. In the latter case, though there may have beenno specific demand from the opposite-party by a notice, there can hardly be any doubt that the act of the opposite-party would amount to a refusal of the enjoyment of their right of entry into the hall.

In the case before me, Suit No. 11 of 1911 was brought to enforce the recurring right in the year 1911. The institution of that suit was clearly an attempt to exercise the recurring right in question even if it be held that the institution of the suit did not amount to a demand by the plaintiffs from the defendants for enforcement of the right. Therefore, on the interpretation I have placed above on the words 'refusal of enjoyment of the right', there was refusal of enjoyment of the recurring right, which is now further sought to be enforced in the present suit.

Learned counsel for the respondents, in this connection, referred me to a number of decisions of the various High Courts where it was held that, in order to apply Article 131, it must be shown that the refusal of enjoyment was made upon a demand. The earliest case brought to my notice is a decision of a Division Bench of the Madras High Court in ILR 7 Mad 341 (Z4) where it was held :

'It is not shown that any demand was made for the payment of the allowance on behalf of the respondent until 1872. It is argued that, because in the suit brought by Kolanthai Nachiar it was pleaded that the payment ceased to be due 011 the death of Sivasami, it must be taken that the plea amounted to a refusal of the right of the respondent; but, although it may be allowed that the plea was equivalent to a denial of the right as appertaining to any heir of Sivasami, it was not made in answer to a demand by or on behalf of the respondent, and therefore in our judgment the period of limitation is not to be computed from that period.''

The nest case is a decision of a Division Bench of the Bombay High Court in ILR 15 Bom 135 (Z), where it was held:

'Article 131 is, therefore, applicable to the present case; and in this view of the matter a distinct finding is necessary by the District Judge as to whether the plaintiffs have been refused the enjoyment of the right and, if so, when were they first refused. Mere absence of enjoyment is not enough. There must be an express repudiation of the claim.

Long exclusion from enjoyment may be an evidentiary fact of great importance in considering the question whether title is proved; but as regards Article 131, Limitation Act, 1877, it has no force, unless it is shown that the exclusion is the result of refusal made upon a demand.'

It may be noticed that, in both these cases, the learned Judges gave no reasoning at all for holding that the exclusion must be the result of refusal made upon a demand. It was assumed that a demand before refusal is essential in order to apply Article 131, Limitation Act.

Similarly, in 14 Mad LJ 477 (Z5), the decision was that the article of the Limitation Act applicable was Article 131 but there was no averment or proof on behalf of the defendants that any demand for rent had been made and refused 12 years prior to the suit. There was no discussion at all in that case whether a demand was necessary before refusal in order to make Article 131 applicable. In 19 Cal WN 386: (AIR 1914 Cal 32) (Z9), Article 131 was held to be applicable and it was further remarked: 'Now 'refusal' plainly implies a previous demand'.

The learned Judges made this comment relying on four earlier decisions--one of the Bombay High Court reported in ILR 15 Bom 135 (Z), cited above and three decisions of the Punjab Chief Court reported in 146 Pun Re 1882 p. 443 (Z10); 106 Pun Re 1883 p. 331 (Z11) and 154 Pun Re 1889 p. 513 (Z12). Similar was a decision of the Bombay High Court in AIR 1916 Bom 143 (Z7), where it was held:

In all such cases, unless there has been an express repudiation of the landlord's title and an open declaration that the lessee holds adversely in interest to his original lessor, I am not aware that a suit for rent has ever been held time-barred, merely because rent has not been paid over a long period.''

In AIR 1926 Cal 883 (Z8), a Division Bench of the Calcutta High Court, with reference to Article 131, held:

'Limitation under this article does not run until there has been a proper demand & a refusal, and mere exclusion from enjoyment does not cause time to run unless there has been refusal as a result of a demand properly made.'

Reliance was placed for this view on the earlier decision of that Court in 19 Cal WN 386: (AIR 1914 Cal 32) (Z9) cited above. In 5 Ind Cas 615 (Mad) (Z15), reliance was placed on the judgment of Candy J., in ILR 15 Bom 135 (Z), to hold that express repudiation of the claim was required to set limitation running under Article 131 and mere non-compliance with a demand was not equivalent to a repudiation of the claim.

It was conceded that there may be cases in which non-compliance coupled with other circumstances may be sufficient evidence of a refusal but. In that particular case, it was held to be impossible to say that non-compliance with two demands amounted by itself to a repudiation of a claim in respect of which the demands were made. It was held that a debtor, who leaves the demands of his creditors unnoticed, does not thereby, as a rule. Intend to deny the right of his creditors to the money demanded. Reliance was also placed on a decision of the Nagpur Judicial Commissioner's Court in 109 Ind Cas 85 (Nag) (Z6), where it was held:

'Mere exclusion from enjoyment does not cause time to run unless the exclusion is the resuit of a refusal made upon a demand.'

The Punjab Chief Court in 23 Ind Cas 445: (AIR 1914 Lah 242) (Z13), accepted the concession made on behalf of both the parties that Article 131, Limitation Act, would not be applicable to the case unless it was proved that the plaintiff expressly demanded from the defendants the enjoyment of his right to receive the whole of the jagir income and that he was refused it more than 12 years before the present suit was brought.

It is significant that, in all these cases which have been relied upon by the plaintiff-respondents, there was no discussion at all on the question whether Article 131 could not be applied if there was a refusal of enjoyment of the right without an express demand. It was presumed that a demand prior to the refusal was essential. It seems to be that a proper interpretation of these cases would be to hold that the learned Judges when using the word 'demand', intended to in-elude not only cases where there was a specific demand by a written notice but also cases where there was an implied demand by attempting to exercise the enjoyment of the right and thereafter the enjoyment of the right was refused.

In the case before me, the plaint in Suit No. 11 of 1911 can be treated as a demand by the plaintiffs of that suit for the enjoyment of their right to recover ulufa money by enforcing it as a charge against the property which had been allotted to the share of Ziaulla under the award of 1897. The refusal of the enjoyment of the right became effective when, subsequently, that suit was not further proceeded with and was withdrawn in the year 1914.

In : AIR1937All57 , cited earlier, the refusal of enjoyment of the right relied upon was in a suit which had been brought by the plaintiffs' predecessor in 1901 for recovery of parjot. In that suit, the right to recover such parjot was denied by the predecessors of the defendants in their written statement and thereafter the suit was allowed to be dismissed for default of appearance. It was held that this denial of the right by the predecessors of the defendants coupled with the dismissal of the suit for default of appearance amounted to a refusal of the enjoyment of the right claimed in that suit.

In the case before me also, as the facts mentioned above show, there was a denial of the right in question by the defendant-appellants in their written statement in Suit No. 11 of 1911 and thereafter that suit was withdrawn and, subsequently, no fresh attempt was made to exercise that right until the present suit was instituted. The withdrawal of that suit of 1911 thus made the denial in the written statement effective, so that it must be held that the enjoyment of the right, which was attempted by institution of the suit, was refused.

155. The third ingredient, which had to be established by the defendant-appellants, is, as mentioned by me above, that the refusal of the enjoyment was made by the defendant-appellants or their predecessors-in-interest. In view of the fact that, in Suit No. 11 of 1911, the denial of this recurring right was included in the written statement filed on behalf of the defendant-appellants, Brij Mohan Lall J., held without much discussion that the refusal was by the defendant-appellants. Beg J., however, differed and held as follows:

'It will be remembered in this connection that no demand about the ulufa was made from the defendant in this suit or his predecessors at all. They were merely formal parties. They were not in possession of the property during the period in respect of which the ulufa was claimed. Their demand or denial was quite immaterial for the purposes Of the suit so far as the plaintiffs were concerned. The plaintiffs might very well have ignored the contents of their written statement.''

Proceeding further. Beg J., held:

'In Suit No. 11 of 1911 the defendants being formal parties, the filing of the written statement by them could not be considered to be necessary. In the plaint itself, no relief was sought against these defendants. Even against the main defendants, the suit was withdrawn with liberty to bring a fresh suit owing to a formal defect in the plaint.'

On these considerations Beg, J., was of the opinion that there had been no refusal of the enjoyment of the right in that suit by the present defendant-appellants or their predecessors-in-interest. It appears to me that there are two reasons why I have to differ from the view expressed by Beg. J. The first ground is that, in arriving at his conclusions, Beg. J., was misled by the incomplete certified copy of the plaint of Suit No. 11 of 1911 which was filed in the present suit.

IN the plaint of that suit, the main prayer was for a decree ordering the defendants to pay to the plaintiffs a sum of Rs. 2,000/14/10 as principal and interest within the period to be fixed by the Court in proportion to their rights in the Zamindari as recorded against their names in column 12 of list 'D', otherwise the share of the defendants to the extent of 17/18 in that property, in respect of which the amount is not paid, be sold to realise that amount with proportionate costs and the amount due to the plaintiffs together with costs and future interests up to the date of realization be satisfied out of the sale-proceeds.

This language of the main relief showed that the decree was sought against those defendants whose names were entered in list 'D' in proportion to their rights in the Zamindari shown in that list. The decree sought was for payment of money and, failing payment being made by the defendants against whom the decree might be passed, there was a prayer for sale of the properties mentioned in that list. When the certified copy of the plaint of that suit was filed in the present suit, it included a copy of list 'D' also.

In that copy of list 'D' the names of the defendant-appellants or their predecessors-in-interest did not occur and, consequently, Beg J., held that no decree had been sought against the defendant-appellants or their predecessors-in-interest and they were merely formal parties. When this point came up for discussion before me, it was urged by Shri Kunzru, learned counsel for the defendant-appellants, that, at the time when Suit No. 11 of 1911 was instituted for recovery of Ulufa money, the defendant-appellants or their predecessors-in-interest were actually full owners of, at least, two of the properties against which the right is sought to be enforced in the present suit.

These two properties are zamindari rights in villages Chhatauri Khas and Sarai Alam. Learned counsel then gave to me facts showing when rights in these two properties had been acquired by the defendant-appellants or their predecessors-in-interest. In these circumstances, it appeared to be surprising that no decree should have been sought against the defendant-appellants or their predecessors-in-interest in Suit No. 11 of 1911 and, consequently, in order to make sure of the correct facts, the original plaint of that suit was sent for by me and was examined with the aid of learned counsel for the 'parties.

On comparison, it was found that the certified copy of list 'D' filed in the present suit was incomplete and was a copy of only about one-third of the original list 'D'. The first one-third portion of that list and the last one-third portion of that list were missing in the certified copy. It was in the latter missing portion that villages Chhatauni Khas and Sarai Alam were entered in the original list 'D'. Certain shares in these two villages were shown in list 'D' as being ownedby Ram Charan Das, Madho Prasad and Man Mohan Das, predecessors-in-interest of the present appellants.

Certain other shares in these villages were shown as owned by others. The names of Bam Charan Das, Madho Prasad and Man Mohan Das occurred in the original list 'D' and it is, therefore, clear that a decree was specifically sought against them also in that suit. Ram Charan Das, Madho Prasad and Man Mohan Das were, therefore, not merely formal parties but were defendants against whom a decree on the basis of the. recurring right claimed was sought and whose rights in some of the properties mentioned in list 'D' were sought to be made liable to sale for enforcing part of the payment of the amount claimed.

They were, therefore, persons directly Interested in the enforcement of the right by the plaintiffs of that suit and their denial of that right in the written statement so as to resist the passing of the decree in it. coupled with the subsequent withdrawal of the suit amounted to a refusal by them of the enjoyment of the right which had been claimed. It was unfortunate that this error was not detected until the matter came up in reference before me.

It is clear that, had this fact been brought) to the notice of Beg J., he would not have accepted the contention raised on behalf of the plaintiff-respondents that the defendant-appellants and their predecessors-in-interest were merely formal parties in Suit No. 11 of 1911 that they were not in possession of any of the property in respect of which the ulufa was claimed and that their denial was quite immaterial for purposes of that suit.

The denial of the right in that suit by Bam Charan Das, Madho Prasad and Man, Mohan Das was necessary to protect their own interest and to avoid the decree which was sought against them, and this plea could not have been ignored by the plaintiffs of that suit. The enjoyment of that right having been refused by the defendant-appellants or their predecessors-in-interest in that suit, limitation for purposes of Article 131, Limitation Act, in respect of that right began to run when that refusal became effective which, as 3 have said, took place on the withdrawal of that suit.

The second reason why I am unable to agree with Beg J., is that, even if it had been correct that no decree had been sought against the defendant-appellants or their predecessors in interest their defence denying the enforcement of the recurring right claimed in that suit was still for the purpose of protecting their interest and they were entitled to raise such a plea in defence. It is the admitted case of the parties that, in respect of other properties against which the right is sought to be enforced in the present suit, viz., villages Gadna, Akhaipur and Yasinpur Abdalpur, the predecessors-in-interest of the defendant-appellants were by the year 1911 mortgagees of the rights which were sought to be sold to enforce payment of the money claimed.

It is true that the mortgages in their favour were subsequent to the charge in respect of the ulufa created on those properties by the two awards of the years 1897 and 1901. Ram Charan Das, Madho Prasad and Man Mohan Das were thus holders of mortgagee rights in respect of mortgages executed in their favour subsequent to the creation of the charge which was sought to be enforced.

Such a subsequent mortgagee is a necessary party in a suit for enforcement of the charge. Under Order 34, Rule 1, Civil P. C., all persons having an interest either in the mortgage-security or In the right of redemption are required to be joined as parties to any suit relating to the mortgage. a suit for enforcement of a charge is also governed by Order 34, Rule 1 of the Code. Consequently, when Suit No. 11 of 1911 was instituted, Ram Charan Das, Madho Prasad and Man Mohan Das, who were holders of mortgagee rights in the properties sought to be sold for enforcement of the charge, had to be joined as necessary parties.

The sale, which might have taken place in enforcement of that charge, would have seriously effected their own mortgagee rights as, that sale being in respect of a prior charge, the property would have been sold free from the subsequent mortgage in favour of these persons. In order to protect their own interest in the properties, these persons were, therefore, entitled to defend the suit and to take the plea that the right claimed did not exist or was not enforceable as a charge. The defence of the suit by them coupled with the subsequent withdrawal of the suit was thus a refusal of the enjoyment of the right by the plaintiffs of that suit by the defendant-appellants or their predecessors-in-interest possessed in the properties and the benefit of that refusal would be available to them even when, later on, they obtained full rights as owners in those very properties.

It would, therefore, appear that this necessary ingredient in order to give a start to the period of limitation under Article 131, Limitation Act, has also been established by the defendant-appellants.

156. The next essential ingredient, which had to be established, is that the refusal of the enjoyment of the right by the defendant-appellants was to the plaintiff-respondents.

As has been mentioned earlier, the right of receiving ulufa money was granted in the award to four persons, viz., Alauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa. By the time Suit No. 11 of 1911 was instituted, Muhammad Zakaria had died. His share in the ulufa money had devolved on Alauddin, Bahauddin and some other persons. In Suit No. 11 of 1911 the plaintiffs were Alauddin, Bahauddin and the legal representatives of Muhammad Zakaria on whom had devolved his right to receive the ulufa money. Shrimati Hidayatunnissa did hot join as a plaintiff.

Instead she was impleaded as a defendant. During the pendency of the suit, one of the heirs, Sharfuddin, also died and his legal representatives were also brought on the record. All the legal representatives of Sharfuddin thereafter joined as plaintiffs in the suit, except Shrimati Hidayatunnissa who continued to remain in the array of defendants and was treated as a defendant even in respect of the share in ulufa money which had devolved on her as one of the heirs of Sharfuddin. It would thus appear that, in that suit, Shrimati Hidayatunnissa refrained from joining as plaintiff and did not put forward any claim in order to enforce her right to the ulufa money.

The plaintiffs were all other persons, besides Shrimati Hidayatunnisa who were entitled to the ulufa money leaving out the share which became payable to Shrimati Hidayatunnissa. In the view that I have taken above, this suit can,in these circumstances, be treated either as an attempt to enforce the right to receive the ulufa money or as a demand but by only those persons who had joined as plaintiffs. The institution of the suit can, in no way, be considered to be either a demand or an attempt to exercise the right by or on behalf of Shrimati Hidayatunnissa.

Consequently, when the defendant-appellants or their predecessors-in-interest filed a written statement and took the step of refusing the enjoyment of that right, this refusal was only as against the plaintiffs of that suit and not against Shrimati Hidayatunnissa. Brij Mohan Lall J., has, in his, judgment, held that it can also be presumed in the circumstances of the case that Shrimati Hidayatunnissa, who was one of the charge-holders who happened to be arrayed as defendants, also came to know of the denial and, on the basis of this knowledge, it can be inferred that there was a refusal of the enjoyment of the right against Shrimati Hidayatunnissa also. I find myself unable to agree with this view.

It appears to me to be immaterial whether Shrimati Hidayatunnissa did or did not come to know of the denial in the written statement when she had not joined as a plaintiff and had neither made a demand from the defendants of the suit nor had she attempted to exercise her right to receive the ulufa money and to enforce it as a charge, because a defendant cannot be held to have made a demand or to have attempted to exercise the right. I may incidentally mention that I am also not in agreement with Brij Mohan Lall J., on the view that it can be presumed that Shrimati Hidayatunnissa also came to know of the denial.

Whatever papers are available on the record do not show that she had put in any appearance-after being served with the summons in the suit. She did not claim her share in the ulufa money and she was not interested in resisting the suit which had been brought by plaintiffs who were merely claiming their own shares. In case the suit proceeded ex parte against her, no necessary presumption follows that she must have come to know of the denial by the defendant-appellants or their predecessors-in-interest in their written statement. In any case, therefore, it has to be held that the refusal of enjoyment in that suit was confined to the plaintiffs of that suit and there was no refusal at all to Shrimati Hidayatunnissa.

Beg J., also came to this very conclusion and, on its basis, proceeded further to hold that, since the right to receive ulufa money was a joint and indivisible right of all the persons to whom the right was granted by the award of 1897, the refusal merely to the plaintiffs of that suit could not amount to a complete refusal so as to bring into play the provisions of Article 131, Limitation Act, against any of them. Beg J., expressed this view in the following words:

'Moreover, the right itself being joint and: indivisible the plea of adverse possession cannot succeed unless the exclusion or ouster is complete or the refusal is shown to have covered the entire right. Thus exclusion or ouster even if any, being merely partial, the plea of adverse possession under Article 131 must fail for that reason.'

At this stage again, I find myself in the position of having to disagree with Beg J.. When dealing with this point, Beg J., took it as an uncontested fact that the right to receive ulufa money was-joint and indivisible. He did not enter into any discussion for holding this to be a fact. To me it appears that the right, as granted by the award of 1897, was not joint and indivisible but that the right was granted to the four recipients, viz., Alauddin, Bahauddin, Muhammad Zakaria and Shrimati Hidayatunnissa, as a separate right of each one of them. (After discussing the terms of the award, his Lordship proceeded):

The right of each of the four persons mentioned in the award was separate and, consequently, a refusal of the enjoyment of the right to any one of them or his legal representatives would be effective against that person, or his legal representatives. The refusal to one of them would be, a refusal of a complete right of that person. In Suit No. 11 of 1911, as I have mentioned before, Shrimati Hidayatunnissa had not joined as a plaintiff, so that the enjoyment by her of the right to ulufa money was never refused.

There was, however, a refusal of the enjoyment of the light to the plaintiffs of that suit who consisted of Alauddin, Bahauddin and the heirs and legal representatives of Muhammad Zakaria, on whom his rights devolved, barring that part of Muhammad Zakaria's right which had devolved on Shrimati Hidayatunnissa. The right having been refused to these persons, limitation under Article 131 started running against them, so that, in the present suit, the plea of limitation under Article 131 is available to the defendant-appellants against all the plaintiff-respondents except the successors-in-interest of Shrimati Hidayatunnissa.

157. I have already had occasion to express my view that the refusal of the enjoyment of the right became complete as against the plaintiffsof Suit No. 11 of 1911 when, after the right had been denied in the written statement by the defendant-appellants or their predecessors-in-interest, the suit was subsequently withdrawn by the plaintiffs of that suit.

It was urged in this connection by learned counsel for the plaintiff-respondents that the refusal could not be held to be complete merely because of the withdrawal of the suit unless the defendant-appellants further proved to the satisfaction of the Court that, following the withdrawal of the suit, there were no further payments in subsequent years for a period of 12 years in pursuance of the right which had been claimed in that suit. In support of this proposition, learned counsel relied on a decision of a Division Bench of the Calcutta, High Court in 26 Ind Cas 939: (AIR 1915 Cal 550) (Z22). That was a case for recovery of arrears of maintenance and, dealing with the point of limitation, the Bench held:

'A further contention was sought to beraised by the learned Vakil for the respondentthat Article 131 of the Limitation Act might applyto this case, and in that connection the case ofILR 16 All 189 (Z38), was relied upon.

'On referring to the judgment in that case, we find that the learned Judges laid down no rule of law at all, but simply stated that they followed the case of ILR 5 Bom 68 (Z37), and there the rule is laid down as it has also been laid down in this Court, that there must have been a denial of the plaintiff's right to receive the maintenance in question as well as cessation of payment; and that this is so is rendered perfectly clear by the passage at p. 663 of the case of Girijanand Datta Jha v. Sailajanand Jha, ILR 23 Cal 046 (Z55), to which we have already referred, where the same point is dealt with in deciding that Articles 128 and 129 should not govern a case of this description, and in that case thecontract was a registered one and it was held that Article 116 would apply, or in this case, of course, Article 115.'

Another case relied upon by learned counsel was a decision of their Lordships of the Privy Council in AIR 1923 PC 118 (Z1), which was a case arising out of a claim for declaration of the under proprietary right of certain land. Dealing with the question of limitation, their Lordships held:

'It is notorious that in actions for rent or enhancement of rent or for ejectment the persons in possession are prone to maintain rights which they do not possess, and if for any reason, as in the present case, no judicial determination is arrived at, but the parties continue on the original footing, the mere lapse of so short, a period as six or twelve years (which might be amply explained upon other grounds) would 'deprive the landlord of his proprietary rights unless 'in the meantime he had brought a declaratory suit to settle once and for all the terms on which pos-session was held.

The case might have been different if, in addition to the judicial assertion by the plaintiff there had been any change in the money payment which he thereafter made to his landlord. There is, however, no suggestion that the same money payment which had been made before the notice of ejectment was not continued thereafter. The possession by the plaintiff therefore remained on precisely the same footing as at the time when he was held by the court to have merely an occupancy title, the precise nature of which it is not necessary to consider in his case.' It appears to me, however, that both these cases, which are relied upon by learned counsel for the plaintiff-respondents, are inapplicable to the facts of the case before me. In both those cases, the payments due under the right, which was in question, were being made regularly until the suits were brought and it was in view of this circumstance that the courts held that cessation of payment was a necessary ingredient to convert the mere denial into a complete refusal of the enjoyment of the right.

In the case before me, the facts brought out show that, even before Suit No. 11 of 1911 was instituted, no voluntary payments were being made by the defendant-appellants or their predecessors-in-interest in satisfaction of the right to the ulufa which had been granted under the award of 1897. On two occasions in the years 1903 and 1907 suits were instituted to enforce that right and decrees were obtained.

There is no evidence at all to show that, after the suit of 1907 and before the institution of Suit No. 11 of 1911, any payments were made by the defendant-appellants or their predecessors-in-interest. When the evidence disclosed that, from the day the right accrued to the plaintiff-respondents under the award of 1897, there never had been any voluntary payments at all, no question could arise of cessation of payments.

There can be no question of proving that a thing has ceased to exist unless there is first evidence to show that the thing did once exist. It is only if a thing is in existence that it can cease to exist. When there were no payments prior to Suit No. 11 of 1911, there could be no question of cessation of payments and of calling upon the defendant-appellants to prove that there had been cessation of payments.

In the circumstances of this case, therefore, no question could arise of placing the burden onthe defendant-appellants of establishing that they had ceased to make payments to the plaintiff-respondents after the denial of the right in Suit No. 11 of 1911. The denial in that suit followed by the withdrawal of that suit thus completed the refusal of the enjoyment of the right. It was, of course, open to the plaintiff-respondents to show that, in spite of that refusal, there was further exercise Of that right subsequently but, on this point, the burden of proof would be on the plaintiff-respondents and not on the defendant-appellants.

It is true that, if after refusal of the enjoyment of the right in 1911, the plaintiff-respondents did exercise that right by receiving voluntary payments under the right or by enforcing payment by a suit, the plea of limitation based on refusal of enjoyment in Suit No. 11 of 1911 would be defeated. But it was, in these circumstances, incumbent on the plaintiff-respondents to establish the subsequent payment or realisation under the right.

When the plea of limitation under Article 131 based on refusal of the enjoyment in Suit No. 11 of 1911 was set up in this suit by the defendant-appellants, the plaintiff-respondents should have, in reply, pleaded that there had been subsequent payments which took away the effect of refusal of the enjoyment in that suit. No such pleading was set up on behalf of the plaintiff-respondents.

Learned counsel for the plaintiff-respondents, In this connection, referred me to the statement of Bahauddin, one of the claimants of the right, when he was examined in the present suit. Bahauddin, in his statement, stated that the defendants had promised to pay his dues but there is a subsequent admission that he had no talk about ulufa money at all either with defendant No. 1 or his ancestors. This admission shows that his evidence about the promise made by defendants to pay his dues under the right to ulufa is not at all reliable and is so vague that it cannot be accepted.

Bahauddin does not say that any payment was actually made by the defendant-appellants or their ancestors. In fact, he washed out the effect of his assertion that a promise had been made by subsequently admitting that he had no talk at all with the defendant-appellants, or any of their predecessors-in-interest. It is, therefore, clear that the plaintiff-respondents failed to discharge the burden of proving that there had been payments subsequent to the refusal in Suit No. 11 of 1911, so that the time for limitation, which started running on the withdrawal of the suit, was not interrupted and continued to run.

Learned counsel for the plaintiff-respondents also relied on the view expressed by Beg J., that an assumption was justified that there was no subsequent suit for recovery of ulufa money under the right only because the amount must have been paid up by the actual persons liable to make the payments. I am unable to accept the view that there can be any such presumption.

Had the defendant-appellants or their predecessors-in-interest been making voluntary payments in the past, there could have been a presumption that the course adopted by them continued in spite of the withdrawal of Suit No. 11 of 1911; on the other hand, when the evidence discloses that there had been no voluntary payment at all at any time either before or after the withdrawal of Suit No. 11 of 1911, no presumption can arise that the failure to file subsequent suits for recovery of ulufa money was the result ofvoluntary payments.

In these circumstances, the period of limitation under Article 131, which started on the withdrawal of Suit No. 11 of 1911, continued to run uninterrupted and since the present suit was brought long after the expiry of the period of twelve years from the withdrawal of the suit, it has to be held that Article 131 stands in the way of the relief being granted to those plaintiff-respondents who are successors-in-interest of the plaintiffs of Suit No. 11 of 1811.

158. There now remains to be considered the effect on the present suit of the previous litigation with regard to this right. It has been urged that, prior to Suit No. 11 of 1911, the right of the plaintiff-respondents to receive ulufa money had already been declared or recognised by Courts on three different occasions: There was, firstly, the decree of the Court dated 30-7-1898, based on the award. It was under this decree that the plaintiff-respondents or their predecessors were declared to be entitled to the ulufa money.

Subsequently, there were two suits for recovery of arrears in which also their title was established. The first was Suit No. 336 of 1903 in which judgment was delivered on 9-7-1904. The second was Suit No. 336 of 1907 in which the decree was passed on 10-3-1908. The decree in the latter suit was confirmed on appeal by the District Judge of Allahabad by the decree dated 24-7-1909, in Civil Appeal No. 68 of 1908.

It was urged that the right to ulufa money having thus been established and recognised by the Courts in suits or appeals in which the defendant-appellants or their predecessors had been impleaded as parties, the law could not require that the plaintiff-respondents should obtain another decree for declaration of the same right subsequently. In this connection, reliance was placed on a decision of the Bombay High Court in ILR 15 Bom 135 (Z), which I have already referred to earlier in another connection. In that case the view expressed by Melvill J., in ILR 5 Bom 08 (Z37), was quoted with approval:

'Thus Article 131, Schedule II of Act IX of 1871, requires a plaintiff, who seeks to establish a periodically recurring right, to bring his suit within twelve years from the date when he was first refused the enjoyment of the right. If such plaintiff were to allow this period to elapse, without suing to establish his right, he could not be allowed indirectly to accomplish the same object by bringing a suit for arrears falling due within the period of limitation. But while this is the rule which, (if the decisions referred to be correct), must be applied to cases in which a plaintiff must establish his title, before he can ask for arrears accruing due under such title, it does not appear to us that the same rule applies, when, as in the present case, the plaintiff has already in a former suit obtained a decree declaratory of his title.

It is no longer necessary for him to establish his periodically recurring right against any person who is bound by that decree: and this being so, we find nothing in the law of limitation which can be construed into a restriction of the plaintiffs' right to recover the arrears failing due within the period of limitation.'

Another case relied upon was a decision of a Division Bench of this Court in ILR 16 All 189 (Z38) In which a plaintiff, whose right to receive a yearly payment out of the income of certain immovable property had been settled by arbitration in the course of a suit in 1864, sued in 1890 to recover from the then holder of the property arrears of such allowance within two years preceding the suit on the allegation that he and his predecessors-in-title had received payment of the allowance for the intervening years or any of them, though he failed to establish that allegation. The suit was held not to be barred by limitation, relying on the decision reported in ILR 5 Bom 68 (237). A decision of a Division Bench of the Patna High Court in AIR 1917 Pat 364 (Z39) was also cited in support of this proposition. It was held:

'It appears that in the year 1877 the plaintiffs sued to establish their right to recover from the defendants the malikana they claim. The written statement filed in that suit on behalf of the predecessors of the present defendants denied the plaintiff's right to this malikana; but notwithstanding that denial the court declared the right and established the plaintiffs' claim. It is now contended that inasmuch as the defendants or their representatives in interest filed that written statement in 1877, the right of the plaintiffs must be deemed to have become extinguished on the expiry of 12 years from that date.

In our opinion, Article 131 bears no such meaning as is contended for. That article means no more than this: that if a party entitled to claim malikana is refused the enjoyment of his right after demand, ho must establish his right by suit brought within 12 years from the date of such refusal. In this case the plaintiffs brought a suit to establish their right, and as between them and the present defendants the right has been established and the decree in that suit is res judicata between the parties.'

On the basis of these decisions, it has been contended before me that the plaintiff-respondents, who or whose predecessors-in-interest had already established their right to ulufa money in the years 1898 and in the suits of 1903 and 1907, could not be required to bring a suit to establish that right merely because their right was denied subsequently by the defendant-appellants or their predecessors-in-interest in Suit No. 11 of 1911. The argument, in my opinion, is untenable as it ignores the fact that the refusal of enjoyment of the right, which had been previously established, was subsequent to that establishment. The refusal of enjoyment of the right in Suit No. 11 of 1911 was destructive of the previous establishment of the right in earlier litigation and gave a fresh start to the period of limitation under Article 131, Limitation Act.

In the present suit, the question, that has come up for consideration, is not whether the plaintiff-respondents or their predecessors never had any right to receive ulufa money. On that point, it is true that the decisions in those earlier suits would operate as res judicata. The question, that has come up, is that, even though that right did exist prior to the institution of Suit No. 11 of 1911, there was a refusal of the enjoyment of that existing right when there was a denial of that right in that suit followed by its withdrawal which brought into existence an entirely new set of circumstances.

In these new circumstances, Article 131, Limitation Act, laid down the requirement that the suit for a declaration of the right must be brought within 12 years of the time when the refusal of the enjoyment of the right became effective and, in case no such suit was brought, Article 131 of theLimitation Act would stand in the way of a relief being granted by enforcement of that right. It may also be conceded that, in lieu of bringing a suit for a declaration of the right to ulufa money within 12 years of the refusal of the enjoyment of the right, the plaintiff-respondents or their predecessors-in-interest could have brought a suit for recovery of the arrears actually due under the right but such a suit should also have been brought within 12 years of the refusal. The declaration that such a right existed could be treated as ancillary to the main relief for recovery of arrears under the right and the decree for arrears could be granted after holding that the right continued to exist.

On the other hand, as I have held earlier, if the suit is not brought within 12 years of the refusal of the enjoyment of the right, even though, the actual suit for recovery of arrears might be within time under the appropriate article of the Limitation Act applicable, Courts would not be justified in granting that relief when the right, under which the relief accrues has become time-barred, because a suit for the declaration of the existence of such right was barred under Article 131 of the Indian Limitation Act. The decisions in ILR 6 All 260 (Z40), 15 Ind Cas 545 (All) (Z41) and 70 Ind Cas 841: (AIR 1923 Rang 11) (Z42) are of no assistance on this point, because in all those cases, a suit for declaration of the existence of the right, under which the relief accrued had not become time-barred, so that the actual relief claimed could be granted after giving a finding that the declaration of the right itself was ancillary to the relief claimed.

The view I have expressed above that a subsequent refusal of enjoyment of a right is destructive of its previous establishment in earlier litigation is supported by a decision of a Division Bench of the Calcutta High Court in Guzan Lal v. Parbati Bari (X). This case is not reported in full in any of the law reports which were available to me but the relevant quotation from the judgment of the learned Judges is to be found in & Cal WN cxcii (X). The learned Judges held:

'We are of opinion that the denial of the plaintiff's right to receive the maintenance to question by the defendant and a cessation to pay the maintenance did constitute an entirely new condition destructive of the condition which had been established by the previous decree, and did afford to the plaintiff a new and a fresh cause of action, upon which she was bound to bring a suit either to establish her right to receive maintenance, or to recover arrears of maintenance, within six or twelve years, as the case might be, from the date of the accrual of the said cause of action.'

In that case, the refusal of enjoyment of the right to maintenance was held to have become-effective on the denial of the plaintiff's right to receive the maintenance in question by the defendant and on the cessation to pay the maintenance. The refusal of the enjoyment of the right constituted an entirely new condition destructive of the condition which had been established by the previous decree and it was held that it did afford to the plaintiff a new and fresh cause of action upon which she was bound to bring a suit either to establish her right to receive maintenance or to recover arrears of maintenance within six or twelve years as the case might be, from the date of the accrual of the said cause of action.

In the present case, the refusal of enjoyment Was brought about, as held by me, by denial ofthe right of the plaintiff-respondents or their predecessors-in-interest in Suit No. 11 of 1911 followed by the withdrawal of that suit. That refusal of the enjoyment of the right constituted an entirely new condition destructive of the condition which had been established in the previous litigation in 1898 and in the suits of 1903 and 1907. A fresh cause of action having arisen, the earlier decisions recognising the existence of the right could afford no protection to the plaintiff-respondents who had to bring a suit within 12 years of the refusal of the enjoyment of the right either directly seeking a declaration that the right existed or getting adjudication on this point by making it an ancillary issue in a suit for recovery of arrears of ulufa money.

The plaintiff-respondents having failed to do so, they cannot now fall back upon the decisions which were given in their favour before the refusal of enjoyment of the right took place. Consequently the suit of those plaintiff-respondents, in the present suit, who are successors-in-interest of the plaintiffs of Suit No. 11 of 1911, is barred by limitation, whereas the suit of the plaintiff-respondents, who are successors-in-interest of Shrimati Hidayatunnissa is within time and their suit was rightly decreed. This disposes of the third question of law referred to me for opinion.

159. I now come to the first question. In dealing with it, I must confess that I have felt onsiderable difficulty in properly interpreting the question as framed by the learned Judges of the Division Bench. The question refers to the tenability of the argument based on want of evidence regarding payment of ulufa and what I am asked to decide is whether that argument could or could not be raised in view of the fact that there was no such allegation in the plaint and the point was not raised in arguments. It appears to me that, if there was any question of pleading in the plaint, it could not be based on want of evidence regarding payment of ulufa money, because evidence comes in a suit during its trial and there can be no pleading in the plaint on the assumption that no evidence regarding payment would be forthcoming when the suit is actually tried.

On the other hand, if the intention of the question is that payment of ulufa should have been pleaded in the plaint, that would imply that the burden of raising this point in the plaint lay on the plaintiff-respondents in which case the burden of leading evidence in support of that point would also be on the plaintiff-respondents. An argument based on want of evidence regarding payment of ulufa in such circumstances could only be raised by the defendant-appellants. Prom the judgments of the two learned Judges it, however, appears that the manner, in which, this point actually arose, was that on behalf of the plaintiff-respondents it was urged that the defendant-appellants had led no evidence to show that there was no payment of ulufa within 12 years after Suit No. 11 of 1911 had been withdrawn. Such an argument would relate not to want of evidence regarding payment of ulufa but to want of evidence regarding non-payment of ulufa. The question, as framed, does not, therefore, give a clear indication of what was the point on which my opinion has been sought.

The question also refers to the fact that this point was not raised in arguments before the Bench. It seems to me that, when a first appeal comes up for hearing before this Court, the power and discretion of the Court to decide the appeal on any point, which appears to the Court to be relevant and important and on which a decisioncan be arrived at on the material on record, cannot be fettered merely by the fact that that particular point had not been urged in arguments at the time of the hearing of the appeal. Further, this aspect appears to be of little importance when, as the proceedings show, the point was actually argued before the Bench hearing the appeal at a later stage when the appeal was listed once more for further hearing of arguments. So far as the effect of this argument on the plea of limitation is concerned I may state that, when dealing with question No. 3, I have already indicated my opinion as to the manner in which this plea of payment required to be dealt with in connection with the question of limitation.

I have held that the burden lay on the plaintiff-respondents to put forward the plea of subsequent payment after the period of limitation under Article 131 started running on the withdrawal of Suit No. 11 of 1911 and it was also for them to prove that there had been any such subsequent payment. Since the plaintiff-respondents never came forward with such a case and led no evidence on this point, it has to be held that the limitation, which started running for the purpose of Article 131, was not interrupted by any subsequent payment. This is my answer to question No. 1.

160. So far as question No. 2 is concerned, I have again felt a difficulty very similar to that expressed by me when dealing with question No. 1. In this question I am asked to consider the tenability of an argument based on want of evidence about knowledge of denial of respondents' right to claim ulufa contained in the written statement of the 1911 suit. The tenability of the question has to be considered in view of the fact that there was no such allegation in the plaint and the point was not raised in arguments. Once again, if the intention is that want of evidence about know-ledge of denial of respondents' right to claim ulufa should have been pleaded in the plaint, such a plea could not, possibly, be expected when the evidence about knowledge had yet to be adduced during the trial of the suit. On the other hand, if the intention is that the knowledge of denial of respondents' right to claim ulufa should have been pleaded in the plaint by the respondents, it seems to me that no question could arise of such a pleading being taken when the suit, as framed, fell within Article 132 and the plaint contained no reference at all to the applicability of Article 131 which latter article is the only article with reference to which knowledge of denial of respondents' right to claim ulufa is relevant.

Further, if the material on the record was sufficient for the Court to decide the question about knowledge of denial of respondents' right to claim ulufa, I consider that this Court, when hearing the first appeal, had an unfettered power and discretion to decide the appeal on such a consideration. Moreover, in view of the fact that the appeal was listed a second time for further hearing and arguments on this point were actually heard by the Bench concerned, it would appear that the failure to urge this point at the first hearing of the appeal was quite ....... immaterial.

In considering the effect of this point on the plea of limitation, I have to refer to my views expressed earlier when dealing with question. No. 3 where I have held that the burden lay oh the defendant-appellants to prove that the denial of respondents' right to claim ulufa contained in the written statement of the 1911 suit amounted to a refusal of the enjoyment of the right by theplaintiff-respondents and, in order to establish this point, the defendant-appellants were required to show that the denial of the right was made under such circumstances that it did amount to a refusal. Since I have held that the defendant-appellants have, in this case, discharged their burden of proof in this respect, the want of pleading in the plaint on this point can have no effect on the plea of limitation.

161. Let the record be returned to the Benchconcerned with my opinion, as expressed above,on the three questions referred to me.

Subject	Property
Court	Allahabad High Court
Decided On	Jan-11-1957
Case Number	First Appeal Nos. 304 and 435 of 1943
Judge	V. Bhargava, ;Brij Mohan Lall and ;Beg, JJ.
Reported in	AIR1957All575
Acts	Transfer of Property Act, 1882 - Sections 52 and 100; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 11 and 38 - Order 7, Rule 6 - Order 8, Rule 2 - Order 34, Rule 1; Limitation Act, 1908 - Sections 3 and 28 - Schedule - Articles 102, 110, 116, 131 and 132; Specific Relief Act, 1877 - Sections 39; Evidence Act, 1872 - Sections 58
Appellant	Manmohan Das and ors.
Respondent	BahauddIn and ors.
Appellant Advocate	Gopi Nath Kunzru, ;G. Mehrotra and ;Amar Nath Kaul, Advs.
Respondent Advocate	Ihsanul Haq and ;Aqiq Hasan, ;Syed Sadiq Ali and ;Isthiaq Ahmad, Advs.

Manmohan Das and ors. Vs. BahauddIn and ors. - Court Judgment