1. This second appeal arises out of a somewhat unusual claim but the Courts below have found in the plaintiff's favour on the facts. The main point for determination in the second appeal is the question of limitation.
2. In 1909 there were disputes between the plaintiff and his father as to the possession of certain lands, the father claiming them to be his self-acquisitions and the plaintiff claiming them to be ancestral property in his possession. To avoid a breach of the peace, the Magistrate passed an order under Section 146 of the Criminal Procedure Code, early in 1910, but instead of appointing a receiver to manage the property, he asked the village karji, the second defendant to look after the lands. The village karji deposes that he looked after the lands only for one or two years and that thereafter the Magistrate got the lands cultivated by somebody else and the sale proceeds were being deposited in the treasury. On account of acts of violence committed by the plaintiff on his father's tenants, the plaintiff was sentenced to imprisonment for about a year about this time and after he came out of the jail he says he went on a pilgrimage. When exactly he returned or how long he was absent from the village it is not possible from the evidence to say. The father appears to have died somewhere about 1915. In some manner, which it is not now necessary to examine, the actual possession of the lands seems to have somehow been obtained by certain mortgagors from the Magisterial authorities. The present suit relates to the moneys alleged to represent the income deposited in the treasury, during the years 1910 to 1917- So far as the record discloses, it is only in 1927 that the plaintiff sent a lawyer's notice to the Collector asking for payment of the money and threatened to sue in default of payment. The Collector as usual replied that the threatened suit would be awaited. It does not appear anywhere that the plaintiff's right was denied at any earlier stage.
3. The Courts below decided against the defendants on the plea of limitation on the ground that the case was governed by Section 10 of the Limitation Act. I do not think it is necessary to canvass the correctness or otherwise of the position that in circumstances like those of the present case Government can be held to be a trustee in whom the property has become vested in trust for a specific purpose. It is not disputed that if Section 10 is out of the way, the only article applicable to the suit will be Article 120. The question is, when does the six years' period of limitation under that article begin to run in such a case.
4. It may be useful to refer here to another contention urged on behalf of the Government, namely, that the plaintiff has no cause of action at all for the present suit because there has in fact been no adjudication at all by a Civil Court in the sense contemplated by Section 146 of the Criminal Procedure Code. The Courts below rightly overruled it on the ground that as the only dispute was between the father and the son and on the father's death the son became undisputedly entitled to the property, it was not necessary to rile a suit to obtain a declaration. But this contention is relevant to show that in the circumstances of the case the plaintiff could not possibly have had a cause of action against the Government immediately the money was received in any particular year as representing the income of land. We must therefore find some other starting point than the dates when the sums were received even for the application of Article 120. Though the Government might not be regarded as a trustee within the meaning of Section 10 they were at least in the position of stakeholders and never claimed to hold the money for themselves. In applying Article 120 to a case of this kind, it is not proper to say that limitation began to run at least from the plaintiff's father's death, on the assumption that the plaintiff could at the moment have claimed payment of the money in the Government's hands. As observed by the Judicial Committee in Mt. Bolo v. Mt. Koklan (1930) 59 M.L.J. 621 : L.R. 57 IndAp 325 : I.L.R. 11 Lah. 657 (P.C.) and some of the cases following it, the suit will be within time if instituted within six years of the date when the plaintiff's right was clearly and unequivocally denied or threatened by the Government. As I have already observed, no such denial took place more than six years before suit in this case even if the Collector's reply to the plaintiff's notice of suit could be regarded as a denial. On this ground I hold that the Courts below were right in their conclusion that the suit was not barred by limitation.
5. A further contention was raised before me, on behalf of the Government, that it is for the plaintiff to prove how much has been deposited with the Government and that, as he has adduced very little evidence in support of his version, the decree of the Courts below is not sustainable. The case is certainly one in which under Section 106 of the Evidence Act the onus lies upon the Government. Having regard to the nature and extent of the land and the general evidence as to the probable yield, the Courts below rightly held that the plaintiff's estimate was modest and reasonable. The Government can no doubt plead in extenuation the destruction of some of the relevant records in accordance with the well-known rules. But as pointed out by the Courts below, one set of books known as shroff's books are expected to have been preserved under the rules for a period of twenty years, and indeed the books for some years were actually produced before the appellate Court. I am asked to read the entries in some of those books and say that they are not specific enough to be held to relate to the plaintiff's claim. If these books had been produced in the trial Court, other evidence would presumably have been forthcoming to connect them with the sources from which the income referred to therein was received. If those who were conducting the case for the Government in the lower Court did not care to take steps to produce the books which in fact were made available on a more diligent search when the case was pending before the appellate Court that is no reason for making the plaintiff responsible for the consequence. I therefore see no reason to interfere with the finding of the Courts below as to the amount payable to the plaintiff. The second appeal fails and is dismissed, but as the respondent is not represented, there will be no order as to costs.
6. Leave to appeal asked for is refused.