1. This is an appeal against a judgment of the District Judge of Patna, by which a suit instituted by the plaintiffs was remanded to the Court of First Instance for the purpose of an account being taken from the defendant.
2. The facts out of which the suit arose are shortly these. The plaintiffs executed a ticca lease for nine years, commencing from the year 1293, and lending in the year 1301 I1. S., upon an annual rent of Rs. 1,400, Rs. 700 being deposited by the defendant, the lessee, by way of security in the hands If the lessors, with this stipulation, that the amount should be applied towards the rent of the last year of the lease, namely, 1301.
3. The plaintiffs case, as set out in the plaint, is that, after the expiration If the period for which the ticca was given, they called upon the defendant for an account of the collections of the annual rent and the payments made by him; but the defendant failed to comply with the requisition, and therefore they (the plaintiffs) are entitled to sue for an account in connection with this ticca transaction from Assin 1293 to Bhadra 1301; and they pray that in default of the defendant rendering such account, a decree may be given to them (the plaintiffs) for Rs. 1,364-7-9.
4. It will be observed, on a reference to paragraphs 6 and 7 of the plaint, that the plaintiffs treat the defendant as servant from the year 1302, and also allege some agency or other in him (the defendant), in regard to the collection of arrears of rent from the raiyats antecedent to the execution of the ticca lease in question. But as regards any money due in connection with such agency or agencies the plaintiffs distinctly state they would bring a separate suit for the same.
5. We should desire here to state that in the schedule annexed to the plaint, showing how the sum of Rs. 1,365-7-9, which the plaintiffs sue for, in default of the defendant rendering an account, is arrived at, we find that the sums, on the credit side are only sums made up of the rent due from the defendant under the ticca lease, no other sum of money by way of advance or otherwise on the part of the plaintiffs being set out; and on the other side of the account in the schedule are put down items of expenses by way of Government revenue, road cess, and certain other items, which the defendants paid on plaintiffs' account.
6. The defendant in answer to this suit pleaded, in the first place, that the suit was barred by limitation, and, in the second place, he contended that a suit for an account was not sustainable against him; and he further stated that, with the permission of the plaintiffs, he (the defendant) used to pay into the Collectorate revenue and road cess, and he also paid the expenses in connection with certain litigation in which the plaintiffs were concerned, and that the said items of expenditure had been set off against the rent payable to the plaintiffs; and he went on to say, with reference to the account filed by the plaintiffs, that the latter had not deducted certain items of expense which he (the defendant) had met on plaintiffs' account, and that the account filed by the plaintiffs was incorrect.
7. The Court of First Instance, with reference to these pleadings, held that no suit for an account could be sustained, and that the only relief which the plaintiffs could have asked for was recovery of rent, which relief was barred by the law of limitation.
8. This judgment, however, has been set aside by the District Judge on appeal. He seems to find that there was a sort of running account between the parties, and in reference to this particular matter, what he says is as follows So far of course the deed showed merely the relationship of landlord and tenant. But the parties by their acts went a good deal beyond this. Defendant No. 1 used to pay Government revenue, and the expenses of litigation and the costs of gilandazi or embankments, &c;, &c.; In this way there was a sort of running account between the plaintiff and the defendant No. 1. That this was clearly understood by the parties is proved by the defendant's own defence.' And then he holds that the plaintiffs are entitled to call upon the defendant for an account, and that the suit having been brought within three years from the end of the year 1301, when the thika pottah terminated is not barred by the law of limitation, but that if a suit for rent had been brought, it would certainly have been so barred. In this view of the matter the learned Judge remanded the case to the Court of First Instance with view that the defendant might be called upon to render an account.
9. In second appeal by the defendant it has been contended that accepting the facts as found by the District Judge, no suit for account could be maintained against the defendant; and we think this contention is correct. The relation ship between the parties, as created by the thika pottah, to which we have already referred, was simply that of landlord and tenant; and that being so, the only relief that the plaintiffs prima facie were entitled to ask for was a decree for rent. But then, it is said, that by reason of the subsequent conduct of the parties, the relationship, as created by the thika pottah, underwent considerable alteration, so as to make the defendant liable to render an account to the plaintiffs in respect of the rent which he (the defendant) had been retaining in his hands (for that is the way in which it is put on behalf of the plaintiffs) and in respect of the disbursement which he (the defendant), as agent of the plaintiffs, had been making on their behalf. Now the facts on which the conclusion arrived at by the District Judge is based, and upon which also the learned vakil for the respondent has placed considerable reliance, are those to which we have already referred, namely, that the defendant used to pay Government revenue and expenses of litigation and cost of gilandazi; and the question, which here arises, is, whether, by reason of these circumstances, there was the relationship of principal and agent created between the parties, such that in the event of the defendant not paying the rent due to the plaintiff, as it fell due year after year, they could, after the termination of the thika in the year 1301, call upon the defendant for an account. Now referring back for a moment to the written statement of the defendant, this is how he puts his defence, namely, that with the permission of the plaintiffs he (the defendant) had been paying on their account revenue and road cess into the Collectorate, and also litigation expenses; and that these sums of money which he thus paid were set off against the rent payable to the plaintiffs; or, in other words, that by reason of the payments that he made from time to time under we direction of the plaintiffs, the whole of the rent had been discharged. And that is really the footing upon which the defendant has been found by the District Judge to have been acting, and nothing more, namely, that under an Arrangement come to between the parties, subsequent to the grant of the thika, be defendant had been paying, on account of the plaintiffs, certain sums of money by way of payment of the rent due to the plaintiff. We think that the acts that have been found by the District Judge, even if accepted as thoroughly correct, do not entitle the plaintiff to call upon the defendant for an account, and that the only relief which the plaintiffs could have properly asked for was a decree for rent against the defendant, if such rent was still due. If they had brought such a suit the defendant might have pleaded the payments made by him as discharging either wholly or partly the rent due to the plaintiffs; but that is not the present case.
10. In the view that we have just expressed, we think that the suit for an account is not maintainable. The result is, that this appeal must be allowed, and the suit dismissed with costs in all the Courts.