1. This appeal has arisen out of a suit which was instituted by the plaintiff for declaration of title and recovery of possession in respect of a certain quantity of land. There were four defendants in the suit. Defendant 4, in December 1919, had purchased a taluk at a rent sale. Out of the lands of that taluk, 6 kanis were let out by defendant 4, in March 1921, to the plaintiff on receipt of premium of Rs. 300. The plaintiff's case is that, shortly after the execution of the lease, he went to take possession of the property, but defendants 1, 2 and 3 offered resistance to him and the consequence was that he did not get possession. Of these 6 kanis of land, one of the plots, namely, No. 937, was in the possession of defendant 1 and the rest of the land was in the possession of defendants 2 and 3. The plaintiff, thereafter, in June 1924, instituted the present suit. As already stated, the suit was primarily lodged with a prayer for recovery of possession on declaration of title. But, in the alternative, there was a prayer for refund of the premium, namely, Rs. 300, which had been paid by the plaintiff to defendant. The trial Court found that plot 937 was in the possession of defendant 1 under a title which could not be challenged by defendant 4 and that, therefore, that was a plot to which defendant 4 was not entitled to at all and so was one in respect of which the plaintiff could not get any decree. Leaving that plot out altogether, the trial Court made a decree in plaintiff's favour in respect of the remainder of the land, declaring the plaintiff's right thereto and directing that he would get khas possession of the same. The trial Court also decreed was lat as against defendants 2 and 3 to the extent of Rs. 100. From this decision of the trial Court, three appeals were preferred, one by the plaintiff, another by defendant 2 and the third one by defendant 4. As the result of these appeals, the learned District Judge has passed a decree in the plaintiff's favour, ordering defendant 4 to refund to the plaintiff the sum of Rs. 319, made up of Rs. 300, the premium paid on account of the lease, and Rs. 19, the amount of rent paid by the plaintiff on the same account, with interest at 12 per cent per annum from the date of the lease up to the date of suit and future interest at 6 per cent. Defendant 4 has then preferred the present appeal.
2. The judgment then stated that one of the several contentions urged on behalf of the appellant in support of the appeal was that the plaintiff was not entitled to a refund of the premium. The terms of the lease relied upon were then quoted as under. The terms relied upon for the purpose aforesaid, are two in number. One of them is to be found in para. 2 of the lease : translated it runs in these words:
I shall not be competent to raise any objection on the ground of drought, inundation, etc., and possession or dispossession of any kind.
3. The other passage in the lease, on which reliance has been placed, is to be found in para. 5 thereof, and runs in these words:
I shall not claim any dags, etc., which may have been included in this lease, but which are owned or possessed by anybody else.
4. It is said that, because of these two conditions aforesaid, the plaintiff is not entitled to get a refund of the premium that he had paid. We are wholy unable to accede to this contention of the appellant. The first of these stipulations evidently refers to an objection that may be raised if the lease had been given effect to; and it merely meant that, if the lessee, when he had been put in possession of the land, was dispossessed by somebody else, he would not be competent to claim an abatement of rent or suspension of rent on account of such dispossession. It had nothing whatever to do with the ordinary obligation of a lessor to put the lessee in possession of the property. As regards the second of the stipulations aforesaid, it merely means that the lessee will not be entitled to claim any land, which may have been included in the lease, but was in the possession of somebody else. These two stipulations, in our opinion, do not, in any way, take away from the lessee the ordinary rights, that he has, of being put into possession and, in default thereof, claiming a rescission of the contract.
5. The next contention, that has been urged, relates to the question of limitation, but it has been successfully answered on behalf of the respondent, by showing that the plea of limitation was [not taken in any of the Courts below, nor also does it find a place in the memorandum of appeal to this Court. Of course, limitation, as a pure point of law, can always be urged in defence in a suit at any stage, but then a question of limitation of this character will certainly depend upon an investigation of facts. If such an investigation has not been held in any of the Courts below, by reason of the omission on the part of the defendant to take the plea in proper time, the plea cannot be allowed to be raised only at the time of arguments in this appeal.
6. Thirdly, it has been urged that no interest should have been allowed to the plaintiff on the sum of Rs. 319, for which the learned Judge has made a decree in plaintiff's favour. We are of opinion that this contention of the appellant should be given effect to. The plaintiff, upon his own case, knew perfectly well, in April 1921, that defendant 4 would not be able to put him in possession of the property, and if he waited for three years or so and then instituted the suit, he cannot justly claim interest on the sum, which he had paid as premium, or for the amount of rent that he had also paid at the time of the lease. In our opinion, the circumstances of the case are such as would justify us in interfering with the order passed by the learned District Judge in so far as it relates to the question of interest.
7. The result, therefore, is that the appeal will be allowed to this extent that the decree of the learned District Judge will be modified by deleting from it the direction as regards the payment of interest and that the plaintiff will get a decree for recovery of Rs. 319 from defendant 4 with interest at 6 per cent per annum from the date of suit till realization. Bach party will bear his own costs in this Court.