1. This is a defendant's appeal and arises out of a suit brought against him by the plaintiff-respondents for their share of profits for the years 1333F to 1338F. The plaintiffs' case was that they and the defendant were co-sharers of half and half in the tenancy described in the plaint and the defendant had been in possession over the whole of it and consequently they (the plaintiffs) were entitled to recover Rs. 3,682-2-0 for principal and Rs. 1,399-2-1 for interest. The defendant contended that the claim was time-barred and plaintiff was not entitled to interest. The learned Subordinate Judge found against the defendant and decreed the suit. The defendant has come here in appeal.
2. The learned Counsel for the appellant argues that the plaintiffs' share is not half, but is only a quarter. There was a litigation between the parties, and the Board of Revenue decided in that litigation that the parties' share in the tenancy in dispute was half and half. Karan Singh who was also entitled to a share in the tenancy was not represented properly in that litigation. He was then a minor. On coming of age Karan Singh filed a suit in 1932 in the revenue Court for his share in the tenancy. On 13th August 1934 the Board of Revenue has decided that Karan Singh's share in the whole of the tenancy is half and the share of the plaintiffs is only a quarter. The plaintiff-respondents were also parties to this case of Karan Singh and they are bound by the decision of the Board of Revenue. This decision was made by the Board of Revenue after this appeal had been filed. The Board of Revenue decision was filed by the appellant with an application on 20th July 1935 along with an affidavit showing all the facts relating to the decision. A copy of the affidavit and the application was served on the learned Counsel of the respondents and no counter-affidavit has been filed by the respondents.
3. This decision of the Board of Revenue settles the matter as regards the extent of the share of the plaintiff-respondents. Their share in the tenancy in dispute is only a quarter and consequently they are entitled to claim profits for only one-fourth share. It was urged by the learned. counsel for the appellant that suit for profits for more than three years was time-barred. He relies on Article 89 and he argues that it applies to the case. The question for consideration is which article applies to the present case. The suit is between two co-sharers for a share of profits for which there is no article in the Limitation Act. Article 89 applies to a suit of a principal against his agent for move-able property received by the latter and not accounted for. In a suit for accounts by the principal against his agent a principal is not restricted to an account merely for three years preceding the suit but is entitled to an account for the entire period without any bar of time. The present suit is not one for accounting and Article 89 does not apply to the present suit. Article 120, Schedule 1, Lim. Act, applies.
4. In Yerukola v. Yerukola 1922 45 Mad 648 under similar circumstances it was held that the appropriate article which would apply was Article 120. The same view was taken in Robert Watson & Co., Ltd. v. Ram Chand Dutt (1896) 23 Cal 799. There some of the joint tenants of certain lands took the use and occupation, of part of the joint lands to the exclusion of other joint tenants, who afterwards brought a suit for compensation for such use and occupation. It was held that the period of limitation for such a suit was governed by Article 120, Lim. Act, and that therefore the plaintiffs were entitled to recover compensation for six years. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy 1925 29 CWN 270 a co-sharer in execution of a decree for recovery of joint possession was given symbolical possession under Section 264, Civil Procedure Code of 1882, on 20th June 1903, but having failed to obtain actual possession sued for partition and separate possession and for mesne profits on 8th August 1912. Their Lordships of the Privy Council held that the claim for mesne profits was governed by Article 120. The principle laid down by their Lordships of the Privy Council applies to the present case also because the suit is between co sharers for profits realized by the co sharer in possession. The learned Subordinate Judge has rightly held that the suit was governed by Article 120 and was not time-barred.
5. It was also urged by the learned Counsel for the appellant that the plaintiffs were not entitled to any interest. The plaintiffs have been deprived of the use and occupation of the land and of the use of the profits which they might have derived from the land. The defendant has appropriated the profits and there is no reason why the plaintiffs should not be compensated for the loss which they have suffered by their having been deprived by the defendant of the use of the money which they would have made if the defendant had not deprived them of the same. It is, therefore, ordered that the appeal be partly allowed, the decree of the lower Court be amended and the plaintiffs' suit for Rs. 1,367-7-0, with future interest at 6 per cent per annum, be decreed with proportionate costs in the Court below. In view of the fact that the plaintiffs' share has been reduced on account of a decision of the Board of Revenue which was made after the filing of the appeal the parties shall bear their own costs in the appeal.