Patna High Court
Babu Saiyiduddin And Anr. vs Babu Avadh Behari Singh And Anr. on 7 June, 1917
Equivalent citations: 40IND. CAS.864, AIR 1917 PATNA 364
JUDGMENT
1. The plaintiffs seek in this action to recover a sum of Rs. 75-8-0 by way of principal and interest from the defendants as a personal debt. The money claimed is represented to be malikana money payable out of the defendants' property to the plaintiffs and the years in respect of which the said malikana is claimed are 1315 to 1318 inclusive. Both the lower Courts have decreed the plaintiffs' suit.
2. In second appeal it is argued before us that the plaintiffs' right to recover the malikana money is barred on two grounds, viz., that in the first place no right to claim malikana from the defendants ever in fact existed; and that in the second place even if it did exist, it has never been recognized.
3. The learned Government Advocate, who appears on behalf of the defendants, has addressed a very lengthy and elaborate argument to us; but after carefully considering it we are satisfied that his argument is unfounded. He contends that Article 131 of the Limitation Act applies and that the period within which an action for a periodically recurring right must be brought is twelve years from the date when the plaintiff is first refused the enjoyment of the right.
4. 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 not withstanding 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 most be deemed to have become extinguished on the expiry of twelve 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, he must establish his right by suit brought within twelve 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 The case reported as Gopinath Chobey v. Bhugwat Pershad 10 C. 697 : 5 Ind. Dec. (N.S.) 468 clearly lays this down. Ina suit for malikana the issue between the parties substantially raises the question of the proprietary right to the estate in respect of which malikana is claimed, and when the question of the proprietary right has been decided in a previous suit between the same parties, a subsequent suit for malikana will be barred as res judicata. Subsequent suits were brought in 1882 and 1894, all upon the basis that the right to claim malikana existed and the suits were for the recovery of a money demand based on that right. The case reported as Roaji v. Bala 15 B. 135 : 8 Ind. Dec. (N.S.) 91 also demonstrates that the construction which we have put upon Section 131 is the true and right construction. At page 141 of the report their Lordships say: "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 his 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 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." This ruling was applied and followed in Calcutta by Mr. Justice Mukherji.
5. In the present cane we are not concerned with the effect of Article 131, inasmuch as the plaintiffs' right has already been declared by the decree obtained in 1877 and that decree is res judicata as between the plaintiffs and the defendants. The plaintiffs are, therefore, clearly entitled to recover the amount they claim. They are entitled to recover from the defendants the sum of Rs. 75 8-0 which represents the arrears of malikana for three years preceding the institution of the suit, which was instituted on the 20th of September 1910. Accordingly the decision of the lower Appellate Court is affirmed, and the plaintiffs' suit is decreed and the appeal is dismissed with costs.