1. On the 13th of October 1891, Ram Sahai, ancestor of the defendants, mortgaged two shops with possession to the plaintiff, Tulshi Ram. The following day he took a further loan of Rs. 200 and executed a kabuliat, duly registered, by which he undertook to hold one of the two shops as a tenant for two years at a rent of Rs. 15 a year.
2. The plaintiff's case is that Ram Sahai died in 1902, having held on as tenant from year to year and paid rent regularly up to the time of his death. The present defendants, who are heirs and successors of Ram Sahai, have paid no rent. The plaintiff sues to recover possession and Rs. 45 as damages. The lower Appellate Court has found that it is not proved that Ram Sahai paid any rent after the 14th of October 1893 that is to say, after the determination of his two years' tenancy, and has accordingly dismissed the suit as barred by limitation under Article 139 of the first Schedule to the Indian Limitation Act, IX of, 1908. The plaintiff comes to this Court in second appeal. The memorandum of appeal is prolix and argumentative, and nothing has been said before me in support of the plea taken in the fifth ground of the same. Substantially four points have been argued. Firstly, the appellant seeks to get behind the finding of fact that no rent was paid by Ram Sahai between 1893 and 1902. The lower Appellate Court has considered both oral and documentary evidence before arriving at its decision. If I rightly understood the argument in support of the appeal on this point, it amounts to this, that the plaintiff produced an account book showing a large number of payments on the part of Ram Sahai, that the lower Appellate Court has only commented on the suspicious appearance of two or three of these entries, but that any one entry, if proved to be genuine, would be sufficient to establish the plaintiff's case. The lower Appellate Court has, however, rejected the account book as worthless and has held none of the payments alleged by the plaintiff to be satisfactorily proved. I must decline to go behind that finding. Secondly, it is contended that the suit is one to which Article 144 and not Article 139 of the first Schedule to the Indian Limitation Act applies. This is contrary to a long course of decisions in this Court, in respect of which it is sufficient to refer to the two cases of Khunni Lal v. Madanmohan Lal 6 A.L.J. 239; 31 A. 318; 1 Ind. Cas. 208 and Pusa Mal v. Makhdum Bakhsh 6 A.L.J. 584; 3 Ind. Cas. 566; 31 A. 514. The plaintiff was bound to come into Court within twelve years of the time when the tenancy was determined, and this took place, according to the principles laid down in the rulings cited, on or about the 15th of October 1893. The third point taken is that the defendants, as heirs of Ram Sahai, cannot reckon any period during which their father may have been in possession in addition to the period of nine years or there about during which they have been in possession. This is really the second point put forward in a slightly different form. If Article 139 of the Schedule to the Indian Limitation Act applies, this argument has no bearing to the case at all. Fourthly, it is contended that the plaintiff is suing for possession as a mortgagee against his mortgagor and that this should somehow affect the period of limitation applicable. If it was intended to raise this plea by the fourth paragraph of the memorandum of appeal. I can only say that this paragraph is very defectively worded. In any case, I do not see that the relation of mortgagor and mortgagee between the parties affects the essential nature of the suit, or the period of limitation applicable to the same. If the plaintiff means that he is a mortgagee, who has been wrongfully dispossessed by his mortgagors, he must show that this dispossession took place within limitation and the period of limitation is twelve years. As a matter of fact, however, the plaintiff's case is not that he was wrongfully dispossessed, for Ram Sahai entered into possession under a lease. This brings us back to the essential point of the case, which is that the suit is governed by Article 139 already referred to. This appeal, therefore, fails and is dismissed with costs.