1. This appeal arises out of a suit for recovery of Rs. 615-2-5 gandas by the sale of Mouza Jonardanpur which belongs now to defendants Nos. 12 and 13. The case of the plaintiff who is the Mohanta of the gadi of Rajgunj Asthal is that this property is charged with a yearly payment to him of Rs. 129-1-1-1 kant. One Baidya Nath Tewari who was the predecessor of defendants Nos. 3 to 11 promised to pay Rs. 120 (sicca) per year to the then Mohanta Udbadhas for the expenses of the idols of the Asthal and as security for the payment of the said annual amount he first of all promised to make over 101 bighas of land. This land, however, not being demarcated it was not made over to the Mohanta. But subsequently a partition having taken place between Baidyanath Tewari and the heirs of his brother Gopinath Tewari under the partition deed it was provided that the predecessor of defendants Nos. 1 and 2 should pay to the Mohanta at the rate of Rs. 120 (sicca) per annum from the income of Jonardanpur. This amount was paid for many years to the Mohanta by the predecessors of defendants Nos. 1 and 2; and at one time the predecessor of the plaintiff obtained a decree for arrears of this money against the predecessor of defendants Nos. 1 and 2. At the time of the partition Touzi No. 21 within which was comprised the Mouza Jonardanpur was divided up amongst the co-sharers and separate accounts were opened. That portion of the touzi which contained Jonardanpur was sold in January 1907 for arrears of revenue and was purchased by defendants Nos. 12 and 3. The plaintiff contended that as only a share of the estate was sold it was sold with all the encumbrances and that this payment of the annual amount of Rs. 120 (sicca) was an encumbrance and the purchasers were still liable to pay this amount. The case of defendants Nos. 12 and 13 with whom we are now concerned would seem to be that there was no charge on the property, that if so, this charge was not an encumbrance and lastly that they were purchasers without notice and, therefore, they were not liable to pay the money.
2. The first Court decreed the suit. He held that a valid charge was created on the property and that this charge was not extinguished by the revenue sale. In appeal the learned Subordinate Judge held that a valid charge was created on the property by Baidya Nath Tewari the predecessor of defendants Nos. 1 and 2. He however, held that as the defendants were purchasers without notice that charge was not enforcible against Jonardanpur in their hand and he further found that the charge created on Jonardanpur by Ex. 4 was not an encumbrance within the meaning of Section 54 of the Revenue Sale Law. He further found that the plaintiff's case was barred by limitation, because he had not brought his case within 12 years from the date of, the purchase at the revenue sale.
3. The plaintiff has appealed to this Court and he contends that the charge created by Baidya Nath Tewari is an encumbrance and that, therefore, as defendants Nos. 12 and 13 purchased at the revenue sale only a share in the estate under Section 54 of Act XI of 1859 they purchased it burdened with the charge, and secondly he argues that the suit is not barred by limitation. It is a suit to enforce payment of money charged on an immoveable property and the liability was a recurring one and limitation runs from each period for which the money was due. The respondents who are traversing both these points, however, contend that no charge whatever was created on the property. I shall deal with this point first of all, because obviously if no charge was created on the property by Baidya Nath Tewari then there is nothing more to be said and the plaintiff's suit must fail. Both the lower Courts have found that a valid charge was created on the property. No doubt there is no document which specifically charges Jonardanpur with the payment of this Rs. 120. The only document that we have is the Ex. 4 in which it is stated that in the place of the land which he (Baidya Nath Tewari) promised to the Mohanta Rs. 120 a year would be paid from the income of Jonardanpur. There further evidence that this amount had been paid for more than 100 years. The lower Courts have, I think, rightly followed the principle laid down in the case of Mana Vikrama v. Karnavan Gopalan Nair 30 M. 203. There it was laid down that the fact that I an allowance had been received out of certain lands for a long period from several successive owners is proof of a grant of a perpetual allowance charged on such lands. This principle, I think, may be applied to the present case. This, money was being paid for more than 100 years which the land must have obviously passed through a number of hands. I think the lower Courts were entitled to draw an inference from this that there was a charge, on Jonardanpur to pay to the Mohanta every year the sum of Rs. 120 (sicca).
4. I shall now deal with the two points raised by the appellant. The appellant contends that this charge is an encumbrance and that, therefore, the purchasers at the revenue sale purchased the property burdened with this encumbrance. As far as I can see a charge of this character is an encumbrance on the land. Bouvier in his Law Dictionary which is referred to in the case of Prodyote Kumar Tagore v. Rakhal Chandra Sarkar 5 Ind. Cas. 213 : 14 C.W.N. 487 : 11 C.L.J. 209 : 37 C. 322, defines, am encumbrance as 'any right to, or interest in, land which may subsist in a third person to the diminution of the value of the land and not inconsistent with the passing of the fee in it by a deed of conveyance'. It seems to me that this definition exactly covers, the present case. This liability to pay Rs. 120 every year to the Mohanta is an interest in the land which subsists in the Mohanta to the diminution of the value of the land. Obviously the land in suit is of less value on account of the burden. I have, therefore, no hesitation in coming to the finding that this charge on the land is an encumbrance and that Jonardanpur having been sold as part of the estate, under Section 54 the purchaser took the land burdened with the liability to pay Rs. 120 (sicca) to the present plaintiff.
5. With regard to the question of limitation that has been decided by the learned Subordinate Judge against the plaintiff he seems to hold that as the money has not been paid for more than 12 years the claim is entirely barred. Incidentally I may point out that this question of limitation was not argued, nor pressed in the Court of first instance. The learned Subordinate Judge is clearly wrong in the finding he has come to on this point. The suit is a suit for recovery of money due and the liability to pay this money is a recurring liability arising every year and the period of limitation runs from the time when each yearly amount fell due. The mere failure to sue for the money for any particular year for more than 12 years would not bar a suit for the amount which subsequently became due.
6. A further point raised by the respondents is that they are purchasers without notice of the encumbrance. In a sale under Section 54 of Act XI of 1859 no question of notice arises.
7. The result, therefore, is that this appeal succeeds. The decree of the lower Appellate Court is set aside and that of the Court of first instance restored.
8. The appellant is entitled to his costs both here and in the lower Appellate Court from defendants Nos. 12 and 13. The other respondents will bear, their own costs of this appeal. The order of the lower Appellate Court as to the costs of the defendants other than defendants Nos. 12 and 13 will remain unaltered.
9. I agree with my learned brother in the order which he proposes to make in this case. I shall add only a few words. Defendants Nos. 12 and 13 purchased at a revenue sale a separate account which amongst other properties consisted of a mouza called Jonardanpur. They purchased, therefore, the Mouza Jonardanpur and under the provisions of Section 54 of the Revenue Hale Law they took it with all the encumbrances existing upon the property. The plaintiff by this suit wants to enforce payment of a certain sum of money by the sale of Mouza Jonardanpur. Now, the sole and real question in this case is 'was there any encumbrance upon Jonardhnpur when it was sold for arrears of revenue?' An encumbrance is a burden upon a property and ordinarily it diminishes the value of the property in question. Now, it appears that the predecessor of defendants Nos. 1 to 11 dedicated 101 bighas of land within Mouza Jonardanpur in favour of a certain Thakur of which the present plaintiff and his predecessors were shebaits as Mohantas. It appears that it was not found possible to demarcate 101 bighas so dedicated. It further appears from partition deed executed between the owners of the original property that Mouza Jonardanpur was assigned, by the partition to the predecessor of defendants Nos. 1 and 2 with a burden of paying Rs. 120 (sicca) out of the income of Mouza Jonardanpur in lieu of the said 101 bighas of land. Apparently it was with the assent of the predecessor of the plaintiff. As it appears that subsequent to the date of that partition that is 1808 the sum of money had been all along paid by the predecessor of defendants Nos. 1 and 2 and in fact by defendants Nos. 1 and 2 themselves and received by the plaintiff and his predecessors. It also appears that in the year 1867 a decree was obtained by the predecessor of the present plaintiff against the then holder of the Mouza Jonardanpur for the amount of Rs. 120 (sicca) then as Rs. 129 and odd in Company's coin. The charge mentioned in the partition deed was enforced by a decree of the Court. In the circumstances both the Courts have held that Mouza Jonardanpur was held by defendants Nos. 1 and 2 subject to the burden of payment of Rs. 129 and odd to the plaintiff.
10. It has been argued by the learned Advocate who appears for the respondents that no charge was created in favour of the Thakur of which the plaintiff is the shebait. I agree with my learned brother that it is clear that there was a liability created upon this property of Mouza Jonardanpur for the payment of Rs. 129 and odd in favour of the Thakur. In the days when this transaction took place no formal deed was necessary for the creation of a charge in favour of a Thakur in the way of debutter. From the circumstances which I have stated it is quite clear that the income of Jonardanpur to the extent of Rs. 120 (sicca.) was assigned for the sheba and puja of the Thakur. Whoever was the holder of this Mouza Jonardanpur was liable to pay this sum out of the income of the mouza. In my opinion, therefore, there was a valid charge upon this property created in the manner stated above. This certainly was a burden upon the property when it was sold for arrears of revenue under Section 54 of Act XI of 1859; the defendants Nos. 12 and 13 when they purchased the property purchased it subject to that burden and, therefore, as minus the income which was dedicated in favour of the Thakur. With, these few words I agree with my learned brother in the judgment which he has just delivered.