1. This is an appeal by the plaintiff in a suit for recovery of money paid by him for the benefit of the defendants. The circumstances under which the payments have been made are not disputed. The defendants on the 6th May 1895 acquired a putni taluk created on the 17th February 1811. The plaintiff is the owner of a dar-putni of four out of the five villages comprised in the putni. This dar putni was created on the 16th May 1862. Shortly after the creation of the dar putni the putnidar made default in the payment of rent to the superior landlord. The dar-putnidar thereupon paid up the arrears and on the 17th November 1862 came into possession under Clause (4) of Section 13 of the Putni Regulation of 1819. The dar-putnidar continued in possession for many years. Indeed, it was not till the 7th August 1899 that his possession was formally terminated. On the 1st February 1901 the putnidar instituted a suit for rent against the dar putnidar for the period between May 1995 and January 1901. It was stated in the plaint of this suit that possession of the dar putnidar as usufructuary lien holder under the Regulation had terminated, on the 7th August 1899. It is clear, however, that as rent was claimed from 1895, the case for the putnidar must have been that the lien had ceased to exist at least from that date. On any other theory it would be impossible to substantiate the claim for rent from the dar-putnidar, because it has not been and cannot be disputed that so long as the dar putnidar lawfully remained in possession as lien-holder, he was not liable to pay rent to the putnidar. This suit was decreed by the Subordinate Judge in part and that decree was ultimately affirmed on appeal by this Court on the 7th April 1908: Jakhomull v. Saroda Prasad Dey 7 C. L. J. 604. During the pendency of this litigation the putnidar repeatedly made default in payment of rent. The consequence was that the present plaintiff (the dar-putnidar) was driven to satisfy the demand of the superior landlord on seven successive occasions from the 4th November 1905 to the 15th November 1903. The plaintiff now seeks to realise these sums; but he has very properly allowed the defendants credit for the rent payable by him as dar putnidar during this period. The Court of first instance decreed the claim in part. Upon appeal the District Judge has reversed that decision. He has held, first, that the plaintiff claims to be in possession during these years as usufructuary lien, holder and he must consequently be deemed to have made the payments for the protection of his alleged lien; and secondly, that if accounts are taken from the 17th November 1862 when the dar-putnidar came into possession upon payment of the dues of the superior landlord up to the date when his possession actually terminated, a large sum would probably be found to be due to the putnidar, and that till this account has been taken the plaintiff should not be allowed to recover sums paid by him to save the putni. In our opinion, there is no foundation for either of these propositions.
2. In so far as the first ground is concerned, it is clear that the plaintiff did not claim to be in occupation as usufructuary lien-holder during the years 1905 to 1908. As already stated, the case for the putnidar in the previous suit for rent was that possession of the dar putnidar as lien-holder had ceased on the 7th August 1899. In fact, the suit was founded on the theory that possession had been terminated at least as early as 1835. That allegation was not repudiated by the defendant, The defendant stated that a large sum of money was due to him on account of the payment made by him to the superior landlord on the 17th November 1862, and he made a grievance that as this large sum was still due to him, he could net be held responsible for the payment of rent. But there was no allegation on his part that he was actually in occupation as alien holder. Under these circumstances it is impossible for us to hold that the present plaintiff may regularly be deemed to have made successive payments to the superior landlord for the protection of his alleged lien. Consequently the principle of the decision in the case of Jinnat Ali v. Fateh Ali 9 Ind. Cas, 219; 13 C. L. J. 646; 15 C. W. N. 332., upon which the District Judge relies, cannot apply. The payments were made by the plaintiff in his character as dar putnidar and there is no question that the defendant as putnidar has profited by the payments.
3. In so far as the second ground is concerned, it is dear that the claim of the plaintiff cannot be postponed merely because accounts have not been taken of the possession of the plaintiff from the 17th November 1862. It is plain that if a claim were now to be put forward for an account of this period, it would be successfully met by the plea of limitation. It is also clear that during this long series of years the putnidar has not put forward a claim for recovery of any excess amount which might have been realised by the dar putnidar. The grounds assigned by the District Judge in support of his judgment, therefore, cannot be supported.
4. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored with costs both here and in the Courts below.