Macleod, C.J:— The plaintiff sued to recover from the defendant as inferior bolder the assessment and Local Fund cess for 1912–1913 of certain lands in five villages. The trial Court held that the plaintiff was not entitled to recover as Inamdar, but allowed the claim for Jadi and Local Fund cess for the lands in suit to the extent of Rs. 140-10-9½ under section 69 of the Indian contract Act.
2. The lower appellate Court dismissed the Bait altogether. The learned Judge held that the plaintiff was barred from recovering the assessment for the suit lands by the principle of res judicata, because certain suits had been filed by the defendant to recover possession of the land and mesne profits from the tenants and the plaintiff's husband was a party to those suits. But I do not think that the question, which is now in issue whether plaintiff is entitled to levy assessment against the defendant, was in issue in these suits though Padappa was a party. The learned appellate Judge does not seem to have considered the question whether the defendant had acquired a right to the suit lands by adverse possession. But it is admitted that these lands were purchased by the defendant in execution of a decree obtained against Kalava, the then Inamdar, in 1874. Therefore he purchased all the Inamdar's rights including the right to levy assessment on the suit lands. No doubt it was held in the litigation regarding other lands belonging to the Inamdars that the defendant had not purchased anything beyond the rights of Kalava, and that on her death Padappa was entitled to succeed. But as a consequence of succeeding in that suit Padappa took no steps either to levy assessment or to recover possession of the suit lands. It cannot be disputed that the present respondent has been in possession of the suit lands for more than twelve years adversely against the plaintiff. It was suggested that the right to levy assessment was a recurring right and the period of limitation should be as prescribed by article 131 according to which time begins to run when there has been a demand and refusal. That may very well be if the relationship of landlord and tenant or superior bolder and occupant has ever existed. Once that the relationship is established, then the mere non-payment of rent or assessment would not he sufficient to enable the tenant or occupant to begin to set up a tibia by adverse possession. There must be some over act Bunch as a refusal to pay the rent or assessment before time begins to run. But here there was no relationship as regards the sait land between the Inamdar and the respondent. By the purchase ab the Bale ab which the Inamdar's rights were put up for sals he was not recognized as in any way liable to pay assessment. Therefore it cannot be said that there was any recurring right in the appellant, who now occupies the position of Inamdar, to recover the assessment. The decision, therefore, in Ganesh Vinayak v. Sita Bai Narayan (1), can be distinguished. In my opinion, therefore, the respondent has clearly established a right to hold this land against the Inamdai free of assessment by adverse possession.
3. As regards the claim of the plaintiff which was allowed by the trial Court, to recover Judiand Local Fund cess, I agree with the learned appellate Judge that should be disallowed. The Judi is pay able in the lamp sum by the Inamdar ??? Government, and if the Inamdar is si remiss as to lose his right of getting the assessment from the occupancy tenants it cannot be said that the obligation pay ??? for those lands for which the payment of assessment was lost, falls ??? the persons in occupation of them. Section 69 only applies when a person is ??? in the payment of money which any other is bound by law to pay, an therefore, if he pays it; he is entitled be reimbursed by the other. Here it he not been proved that the defendant bound by law to pay the Judi. Therefor if the plaintiff pays it, it must be cons dared it has been paid in his own in beret and he certainly cannot be entitled of recover it from the defendant under section 69.
4. Therefore the decision of the learned appellate Judge must be confirmed and the appeals dismissed with costs.
Fawcett, J.:— I concur. Reliance was placed for the appellant on the view taken in some reported cases that under article 131, in order that a recurring right of the kind specified in that article should be time barred, it is necessary for the defendant to show that there has been a definite demand and refusal.
5. In my opinion, that view should be limited to cases where the circumstances are such that mere non-compliance with the right does not of itself amount to a refusal. I would point out that under article 131, 3rd column, limitation does not run from the time when the enjoyment, of the right is first demanded and refused, but when the plaintiff is first refused the enjoyment of the right. If we compare this article with articles 88, 89 and 103 where the words used are ‘demanded and refused,’ it will be seen that it is rather reading into the article, words which are deliberately omitted from it, to say that under article 131 there must be shown a definite demand, to which there was a refusal. In the present case the circumstances, in my opinion, are such that the non-payment of any rent or assessment by the defendant to the plaintiff necessarily constitute a refusal within the meaning of this article. The defendant had acquired the right, title and interest of the Inamdar at the Court auction. There had been a lengthy litigation between the parties and the defendant was admittedly in adverse possession of the lands for a Period which absolutely barred the plaintiff's right to recover them, although the plaintiff was successful in the litigation which went to the Privy Council.
6. I think, therefore, that even supposing he case does fall under article 131, the plaintiff was first refused the enjoyment of the right over twelve years before the constitution of the present suit, and that his claim to levy any assessment is clearly ???. On other points I agree with the earned Chief Justice.
7. Decree confirmed.