Bombay High Court
Harmukhgauri vs Harisukhprasad on 16 January, 1883
Equivalent citations: (1883)ILR 7BOM191
JUDGMENT Melvill, J.
1.We think that the District Judge is correct in his opinion that Article 132, Schedule II of Act IX of 1871 applies to suits which are brought by a 'hakdar' against the person originally liable for payment of the 'hak', and not to suits by one sharer in a vatan against another sharer, or alleged sharer, who has improperly received the plaintiff's share of the 'hak.' A suit of the latter description is a suit for money received by the defendant for the plaintiff's use, and the period of limitation is three years, as proscribed by Article 60. It is true that this is not the view which was expressed in the case to which the District Judge refers--Chhaganlal v. Bapubhai I.L.R. 5 Bom. 68 but it is to be observed that the question raised and argued in that case was whether the 'hak' in dispute was moveable or immoveable property, and whether the period of limitation was six years, as alleged by the defendant, or twelve years as contended by the plaintiff. It was never argued that a shorter period than either might possibly apply, and the question of the applicability of Article 60 was not even considered. Had this argument been presented to the Court, it is more than probable that it would have prevailed.
2. Under the view which we now take we must reverse so much of the decrees of the Courts below as awards to the plaintiff the sum of Rs. 499-8-0 and costs in proportion. In other respects the decrees are confirmed. The respondent to bear the costs of this second appeal. The parties to bear their own costs in the Courts below.