ANWAR KHAN Vs. MUNIM KHAN

JUDGEMENT

(1.) THIS appeal is on behalf of the Defendant and it is directed against the judgment and decree of the District Judge, Parbhani, dated 27th Azur, 1356 -F, reversing the judgment and decree of the Munsiff of Sailu who had dismissed the suit.

(2.) THE only point argued before us was that of limitation. The questions of fact as found against the Appellant were not challenged by the learned Counsel for the Appellant. The facts found by the lower appellate Court are that Rustam Khan was the incumbent of the police Patel ship of Palodi, Pathri Taluq. During his lifetime, he applied to the Deputy Collector for transfer of incumbency to his son Mohiuddin Khan, the father of the Appellant. Taj Khan the father of the Respondent inter - veined with the prayer that he be declared to be an equal sharer in the emolument of the Watan. After due inquiry, the necessary sanction was granted by the Collector for transfer of Watan and on express admissions made by Rustam Khan and Mohiuddin Khan, Taj Khan was declared to be an equal sharer. Mohiuddin Khan died in 1345 'F. and was succeeded by the Appellant. The present suit was instituted by the Respondent on 26th Bahman 1355 F. It was argued by the learned Counsel for the Appellant that Article 106 of, the Hyderabad Limitation Act applied which prescribes a period of six years from the date when the right to sue accrues. The suit, therefore, ought to have been brought within six years from the death of the Respondent's father which occurred almost, twenty -five years before the institution of the suit or within six years from the death of Respondent's (Appellant's?) father which occurred in 1345F. This contention has no substance in view of the authority of the late Hyderabad Judicial Committee in - Deo Rao v. Narain 34 DLR 153 (A) and - Yedvalli Gopamma v. Yedwalli Ramchander Rao 37 DLR 414 (B) which lays down that Article applicable in such cases is Article 117 of the Hyderabad Limitation Act. This view is supported by the pronouncement of the Privy Council in the - Secy, of State v. Para -shram Madhav Rao <MID></MID> : AIR 1934 PC 108 (C). That Article provides a period of twelve years for a suit to establish a periodically recurring right from the date when the Plaintiff is first refused the enjoyment of the right. In order to constitute a refusal within the meaning of this Article. there must be a definite demand and refusal. The mere fact that the Plaintiff has not exercised his right is not enough. The Respondent in paras 4 and 5 of the plaint has asserted, that he. received his share of the emolument upto 1353 F., but was refused the right on 20th Bahman 1355 F. The lower appellate Court has held this allegation to have been well substantiated by the Respondent from which we do not see any reason to differ. The refusal being in 1354 F., the suit was within time.