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Kallar Roy Vs. Ganga Pershad Singh - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal998
AppellantKallar Roy
RespondentGanga Pershad Singh
Cases ReferredMiller v. Runga Nath Moulick
Excerpt:
malikana - limitation act (xv of 1817), schedule ii, articles 115, 120--suit for recovery of arrears of malikana without seeking to enforce the charge upon the land. - .....the plaintiff appeals on the question of limitation, and the same defendant prefers a cross-appeal on three points:(1) that the 3 years' rule of limitation applies.(2) that he should not be held jointly liable with the other defendants.(3) that plaintiffs are not entitled to any interest.3. in the case of ramdin v. kalka pershad (1884) i.l.r. 7 all. 502 : l.r. 12 i.a. 12 it was held by their lordships of the judicial committee that article 132 of the limitation act, which provides a limitation of 12 years for suits including those for malikana for enforcing the payment of money charged upon immoveable property, applies only to cases in which the payment is to be enforced out of the land on which it is charged. that case was followed in miller v. runga nath moulick (1885).....
Judgment:

Pratt and Bodilly, JJ.

1. The plaintiffs sued for the recovery of arrears of malikana for a period of 12 years. The first Court gave them a decree for the fall period together with interest at 12 per cent. per annum as for arrears of rent. On appeal by one of the defendants it was held that the plaintiff could recover for six years only under Article 120 of the Limitation Act, and that he was entitled to six per cent, interest, by way of damages. The defendants' claim to be made liable for his share only and not jointly with the other defendants was disallowed.

2. The plaintiff appeals on the question of limitation, and the same defendant prefers a cross-appeal on three points:

(1) That the 3 years' rule of limitation applies.

(2) That he should not be held jointly liable with the other defendants.

(3) That plaintiffs are not entitled to any interest.

3. In the case of Ramdin v. Kalka Pershad (1884) I.L.R. 7 All. 502 : L.R. 12 I.A. 12 it was held by their Lordships of the Judicial Committee that Article 132 of the Limitation Act, which provides a limitation of 12 years for suits including those for malikana for enforcing the payment of money charged upon immoveable property, applies only to cases in which the payment is to be enforced out of the land on which it is charged. That case was followed in Miller v. Runga Nath Moulick (1885) I.L.R. 12 Calc. 389. Now in the present case the plaintiffs do not seek to enforce the charge upon the land for which malikana is payable, nor could they do so, because they are only some of the proprietors and have not joined the others in the suit. Therefore their remedy, which by Section 100 of the Transfer of Property Act is the same as for mortgagees, cannot be had against the property itself. That being so the 12 years' rule of limitation provided by Article 132 is inapplicable. We think that the claim for malikana must be regarded as arising out of a quasi-contract created by law, and that Article 115 is therefore the right one to apply. The cross-appeal therefore succeeds, as regards the period being 3 years and not G.

4. Having regard to the Interest Act we hold that the Subordinate Judge was not justified in awarding interest by way of damages. His reason for making all the defendants jointly liable, viz., that the malikana has never been apportioned, is we think correct.

5. In the result the appeal is dismissed with costs. As regards the cross-appeal we direct that the decree be modified so as to allow malikana for 3 years only against all the defendants jointly, the same to carry no interest except from the date of decree. Each party to pay his own costs of the cross appeal.


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