Full Judgment
Pramada Charan Banerji and Wallach, JJ.
1. The suit out of which this appeal arises was brought under the following circumstances One Jai Ram was the owner of certain immovable property. Upon his death in 1910 disputes arose between his widow, Musammat Bibi Kunwar, and his nephew, Baijnath. The former alleged that Jai Ram was separate and that she as his widow was entitled to Ms property. Baijnath, who was the brother's son of Jai Ram, asserted that he and Jai Ram were members of a joint family and that therefore upon Jai Ram's death he succeeded to the property by right of survivorship. These disputes were raised in mutation proceedings. The court of first instance held that the family was joint and ordered the name of Baijnath to be entered in the revenue papers. This order was passed on the 23rd of December, 1910. On appeal the aforesaid order was set aside and the appellate court held, on the 18th of April, 1911, that Bibi Kunwar was entitled to the property, her husband having been separate from his nephew, and directed her name to be entered. Upon the passing of the order of the court of first instance Baijnath took possession, and between the date of the order of the first court and that of the order of the appellate court, he collected rents and profits to the extent of Rs. 1,218-14-8, from tenants and paid Rs. 1,226-8-3 on account of Government revenue. After the passing of the order of the appellate court he had to relinquish possession as he apparently acquiesced in the decision of that court. Some of the tenants sued him for a refund of the rents which he had realized from them and obtained decrees. He thereupon assigned to the plaintiff his alleged right to recover from the defendant the revenue which he had paid in respect of the property. The plaintiff by virtue of this assignment brought the present suit for recovery of Rs. 1,226-8-3 and interest thereon. He alleged his cause of action to have arisen when the tenants obtained a decree against Baijnath on the 29th of March, 1913. The suit was instituted on the 28th of March, 1916. The defendant pleaded limitation and the question was what article of the Limitation Act governed the present suit. The court of first instance decreed a part of the claim. It did not decide what article of the Limitation Act applied to the case. The lower appellate court was of opinion that Article 97 was applicable and that limitation was to be computed under that article from the 18th of April, 1911, the date of the decision of the appellate court when Baijnath relinquished possession. That court dismissed the suit as time-barred. In our opinion Article 97 has no application to the present case. That article provides for suits for money paid upon an existing consideration which afterwards fails. The consideration for payment of the revenue could not be the realization of rents from the tenants. The revenue was paid because the property was liable for revenue and demand was made for it. It was payable by the person in possession whether he had collected rents or not. Therefore the collection of rents was not the consideration for the payment of the revenue, as held by the court of first instance and contended for by the learned vakil for the appellant, and a refund of the rents cannot be said to be a failure of the consideration or part thereof. The learned vakil for the appellant has asked us to apply Article 97 or Article 120. We do not think, as we have said above, that Article 97 is applicable. If we assume that the consideration for the, payment of revenue was possession by Baijnath of the property of defendant, that consideration failed, as the learned Judge says, when possession was removed in April, 1911. We do not, however, think that it could be said that the consideration for the payment of revenue was the fact that Baijnath was in possession. In our judgment the article applicable is Article 61, which clearly applies to cases of this kind. That article provides for suits ' for money payable to the plaintiff for money paid for the defendant,' and limitation runs from the date on which the money was paid. Baijnath, the vendor of the plaintiff, paid the revenue which in reality was payable by the defendant. There-fore the money which he paid was money paid for the defendant, and it is this money which is sought to be recovered by the present suit. As limitation for a suit of this kind runs from the date of payment, and in the present case the last date of payment was some date prior to the 18th of April, 1911, the present suit brought on the 28th of March, 1916, is time-barred. It is urged that, if Baijnath had sued for the revenue which he had paid, it might have been contended on the defendant's behalf that, as he had, realized rents from the tenants, he was not entitled to get anything more than the difference between the amount realized by him and the amount paid as revenue, and that the present suit could not have been instituted unless Baijnath had refunded any. part of the rents realized from the tenants. We do not think that this is a valid contention. Baijnath could have sued, if at all, for the balance of revenue due to him after giving credit for what he had realized. In that case the defendant could not have recovered the rent twice over from any of the tenants, and the tenants could not have obtained a refund of the rents from Baijnath. If Baijnath has under the present circumstances sustained any loss it is in consequence of his laches in not bringing his suit within the period of limitation prescribed We suit of this kind. The learned vakil for the appellant, in support of his contention that Article 97 applies, referred to the case of Koji Ram v. Ishar Das (1886) I.L.R. 8 All. 273. In our opinion that case has no bearing on the present case and its facts are wholly distinguishable from the facts of this case. As in our opinion Article 61 is the article applicable to the present suit, Article 120 cannot apply. The court below was, therefore, right in dismissing the suit on the ground of limitation, though its reasons are not the reasons for which we hold the suit to be time-barred. We dismiss the appeal with costs.