1. The question for decision in this appeal is whether the lower courts are wrong in dismissing the suit as barred by Article 120 of Schedule II of the Limitation Act. The suit was brought for the apportionment of Kattubadi and quit-rent payable on the land in possession of the plaintiff.
2. Plaintiff's case is that of an entire area of 164 acres charged with Rs. 516-6-6 as Kattubadi and quit-rent, he is in possession of 128.92 acres as purchaser from, and of 7.32 acres as tenant under, 8th defendant, that defendants 2 to 7 are in possession of the remainder in several portions as purchasers, that the average amount payable for each acre is Rs. 3-2-4 1/2, but that defendants 1 to 5 have been paying less than the amount so calculated on the acres 18.22 in their possession, which has in consequence been levied from plaintiff since 1882. Hence this suit to have the Kattubadi and quit-rent apportioned in the several shares and for the recovery of the excess amount of Rs. 55-5-3 (at Rs. 18-7-1 per annum) levied from plaintiff during the 3 Faslies immediately preceding the suit, and interest thereon.
3. First defendant disclaimed all interest in the property in question and defendants 6, 7 and 8 supported the plaintiff's claim while defendants 2 to 5 pleaded that the apportionment was rightly made by the Head Assistant Collector in August 1881 on the taram rent or sist of the lands, and that they have been paying accordingly ever since and no fresh apportionment is necessary. They further pleaded that the suit is time-barred as the lower courts have found. Hence this appeal.
4. We do not agree with the courts below that the claim for apportionment is barred by limitation. The parties to the suit hold distinct portions of the Inam subject to payment of the Kattubadi, under one and the same Inam patta. Their position is therefore analogous to that of joint pattadars who have to bear a common burden as between themselves and Government. So long as the joint liability lasts each is entitled to claim an apportionment and such claim can no more be time-barred than can a claim for vent so long as the title to the land is not extinct. If the order of the Head Assistant Collector referred to by the defendants was made under any legal authority and could as such be held to be binding, it might bar the suit, but we are not referred to any legal enactment which would justify our treating the order as being conclusive. The more fact that such an order was made can have no greater force than the expression of an opinion by a revenue officer.
5. The decision in Durga Pershad v. Ghosita Goria, I. L. R 11 C 284 is only authority for the proposition that Art 120 of Sob. II of the Limitation Act is applicable to a suit by a tenant against his landlord for apportionment of the rent payable to such landlord for the portion of land obtained by him on partition out of what had theretofore been held by the tenant under all the co-sharers jointly.
6. The present is not a suit between tenant and landlord, but by a proprietor against other proprietors for apportionment of the assessment on lands included in a single patta. The decision in I. L. R 11 C 284 is therefore not in point.
7. In allowance of this appeal we set aside the decrees of both the courts below and remand the suit to the District Munsif for replacement on his file and disposal according to law.
8. The costs of this appeal and in the Lower Appellate Court will be paid to the plaintiff by defendants 2 to 5.