Madgavkar, J.:—
The two questions in this appeal are, firstly, whether Article 131 or Article 62 of the Indian Limitation Act applies to the plaintiff respondent's claim for arrears of his share, and secondly, whether the method of computation in regard to these arrears followed by the lower Courts is consistent with the decree between the parties in their previous litigation in appeal No. 241 of 1915 in the District Court of Poona, and appeal No. 35 of 1918 from that decree in this Court. The plaintiff files cross-objections in respect of judi.
The defendant No. 2 appellant along with the defendant No. 1 respondent was inamdar of two villages, Pangri and Bhavdi. Their predecessor-in-title passed in 1843 a deed of gift in favour of the predecessor-in-title of the plaintiff respondent. The latter filed a Suit No. 520 of 1909 in the Subordinate Judge's Court of Khed against the defendants for a declaration of his recurring right and for an injunction to restrain the defendants from obstructing the plaintiff in its enjoyment. The lower Courts went into the questions and granted the plaintiff the reliefs claimed. The present suit was instituted in 1923 to recover the arrears from 1908 to the date of the suit. The trial Court laid down a certain method of calculation of those arrears and held that Article 131 applied, so that the claim for arrears for 12 years was in time, a view upheld in first appeal. Defendant No. 2 appeals.
On the question of limitation, the lower Courts have proceeded on the view of Chandavarkar J. in Sakharam Hari v. Laxmipriya Tirtha Swami. Two views in regard to the construction of this Article prevailed. The one in Lachmi Narain v. Turab-un-Nissa and Sri Sri Baidyanath Jiu v. Har Dutt Dwari is that Article 131 applies only to suits for a declaration of a right such as, for instance, the former suit in the Subordinate Judge's Court of Khed between these parties, but that it does not apply to the arrears claimable by reason of such rights which may fall under Article 62 or some other Article according to the circumstances of each case. The other view laid down by the Full Bench in Zamorin of Calicut v. Achutha Menon derives perhaps a certain amount of support from the judgment of Chandavarkar, J. in Sakharam Hari v. Laxmipriya Tirtha Swami to the effect that Article 131 is not confined to suits for a declaration but also applies to a suit to recover sums due under a periodically recurring right. The judgment of Chandavarkar, J. is based on the previous decisions of this Court such as Raoji v. Bala and Chamanlal v. Bapubhai.(4) The language of these two decisions, however, is more guarded than the language of Sakharam Hari v. Laxmipriya Tirtha Swami. Thus in Raoji v. Bala it was held that—
“A suit by a co-sharer to establish his title to a share in an annual allowance received by the defendant from Government is one falling under Article 131, and not 144, of the second Schedule of the Limitation Act (XV of 1877)… the claim for arrears of the allowance fell under Article 62”—
a view followed in Chamanlal v. Bapubhai. There are, undoubtedly, certain expressions in Sakharam Hari v. Laxmipriya Tirtha Swami which go further than these decisions and make the Article applicable, not according to the nature of the suit but also according to the defendants sued. Actually however on the facts of the case in Sakharam Hari v. Laxmipriya Tirtha Swami this latter question as to the defendants hardly arose. Article 131 was applied apparently on the ground that the suit was against a person originally liable to pay and in which therefore the question of the existence of that right also arose. Speaking for ourselves, we prefer to follow the current of decisions of this Court in Raoji v. Bala and Chamanlal v. Bapubhai. The language of Article 131 is clear. That Article applies in express terms to a suit “to establish a periodically recurring right” not to recover sums due under such a right, and limitation begins to run from the date “when the plaintiff is first refused the enjoyment of the right.” It is conceivable that as in Raoji v. Bala the suit may claim both the reliefs, and that while the claim to establish a periodically recurring right falls under Article 131, the claim for arrears falls under Article 62. In the present case the claim is not for the establishment of a right as it was in the former suit in the Subordinate Court of Khed but the claim is expressly for arrears. The question whether the defendant was originally liable to pay the co-sharer is not in our opinion relevant. Here, for instance, the inamdar was a person originally liable to pay but for some years the plaintiff was paid his amount direct by the village officers. Subsequently, the defendants complained that the plaintiff drew more than his proper share and asked that the entire amount should be paid to them and they would be responsible for disbursing it to the plaintiff. That was done, and during the years prior to the suit the defendants inamdars had been receiving the entire amount including the amount due to the plaintiff. On these facts the suit in our opinion clearly falls not under Article 131 but under Article 62.
The second point as to the method of computation is complicated partly by the language of the former decree in the Poona Court and partly by the use of the term “gross assessment” by the learned Subordinate Judge in a sense which is not clearly identical with the sense in which that phrase was employed in the former judgment. The question really is reduced as to whether the plaintiff should bear his share of (1) Patilki and Kulkarni inam, (2) judi and (3) village expenses. The words in the former decree are:—
“The plaintiffs are entitled to receive every year out of the revenue of the eight-anna share of Amritrao in each of the villages of Pangri and Bhavdi (now purchased by the defendants) Rs. 150 minus such amount, out of the amount of revenue left unrecovered or remitted and the ordinary village expenses, as is proportional to the share of Rs. 150, subject to a proportional increase or reduction in the amount of Rs. 150 on a corresponding increase or reduction in the assessment recoverable on the village lands.”
It is contended for the appellant that the plaintiff respondent should bear his share of three items, firstly, the village expenses properly so called which small item, secondly, judi, and thirdly, Patilki and Kulkarni inam.
As to the first there is no question, the word being expressly employed in the former judgment and the decree. As to the second, judi, that contention must in our opinion be disallowed. The “gross assessment” so called is a theoretical assessment at the full survey rates computed on all lands including the Patilki and Kulkarni inam. Out of that or whatever amount has been actually recovered, the Talati retains the judi recoverable from the inamdar and pays it to the Government treasury. That amount must therefore be added to the amount which actually comes into the inamdar's hands if we are to find the actual recoveries. It cannot be classed with sums unrecovered or remitted. That amount is therefore already included in the amount recovered by the Talati, but it is not a portion of the amount which actually comes into the inamdar's hands which is the net amount due to him. It is not expressly mentioned in the former decree by which alone we must be guided in the present computation. The appellant's contention on this point therefore fails, and the lower Courts were right in this respect.
On the last point regards the Patilki and Kulkarni the matter is different. It appears to us in construing the former judgment that amount figures in the amount left unrecovered or remitted. And by the word “gross assessment” in the former judgment we understand not the gross assessment in the new sense in which the learned Subordinate Judge has used it after certain deductions from the whole assessment but in the words used as explained by the Talati, viz.: the total theoretical gross demand fixed for the village which includes the theoretical demand from the Patilki and Kulkarni lands but which latter demand in respect of these lands is subsequently left unrecovered by reason of their being inam. As far as we can construe the former decree, the plaintiff respondent was in that decree to bear his proportionate share, and on this point, therefore, we are of opinion, on the whole, that the contention for the appellant must be allowed and the account taken on this footing. It would have been preferable, we think, that both in the former litigation and in the trial Court if actual figures for a year instead of a theoretical figure has been taken. However that may be, in the absence of actual figures, comparing the former judgment and the decree, the method of calculation followed by the lower Courts was inconsistent in our opinion with the former decree, and must be set right in the manner stated above.
The matter is rendered more clear by the illustrative figures in paragraph 28 of the judgment of the District Court of August 8, 1917. Taking those figures we understand the “gross assessment” of Rs. 1,500 to be the theoretical assessment including the full assessment of the Patilki and Kulkarni inam lands. The actual recoveries of Rs. 1,300 do not include the theoretical assessment on Patilki and Kulkarni inam lands, which are left unrecovered and remitted. On the other hand, the judi must be included in the Rs. 1,300 but not in the Rs. 1,000 actually paid in cash by the Talati to the inamdar. The Talati would retain the amount of judi in the item of village expenses of Rs. 300 for payment to the Government treasury in the same manner that he would retain other village expenses so called for payment in the village such as temple or other. Out of Rs. 1,000 cash the inamdar would retain Rs. 900 and the present plaintiff Rs. 100. Under these circumstances it appears to us clear that the former decree intended that the plaintiff respondent should bear his share directly out of the Patilki and Kulkarni inam and of the village expenses properly so called.
For these reasons we allow the appeal and modify the decree of the lower Courts by awarding to the plaintiff the arrears for three years prior to the suit computed for those years and calculated in the former decree explained in the manner above.
The plaintiff admitted in the trial Court having received his share from 1921 to 1922. He has therefore succeeded in respect of one year and failed in respect of nine years. The defendants Nos. 1 and 2 who appealed in the District Court were represented by the Same Pleader. There is no obvious reason why they should have been separately represented in the present appeal. The order as to costs will therefore be as follows: The defendant No. 2 appellant should get his costs in this Court from the plaintiff respondent, the other respondents to bear their costs in this Court. The defendants Nos. 1 and 2 should get one set of costs from the plaintiff in the District Court. In the trial Court the plaintiff will get 1/10th of his costs from the defendants Nos. 1 and 2 and will pay them 9/10th of their costs.
The cross-objections of the plaintiff are dismissed with costs.
Appeal allowed.
B.G.R