SHYAM CHARAN TIWARI Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS is a plaintiffs civil regular second appeal in a suit for arrears of rent which had been decreed in full by the trial Court but was dismissed in part by the learned civil Judge, Ajmer, on appeal on the ground of limitation.

(2.) THE material facts leading up to this appeal may shortly be stated as follows: the plaintiff is a brother of one Bal Mukund Tiwari, deceased, who created a trust with respect to the property in suit of which the defendant was made a trustee along with two other persons with whom we are not concerned. It is admitted that the defendant had been living in the said property as a tenant since 1945 on a rent of Rs. 12/8/- per mensem. The plaintiff's case is that the aforesaid trust had been held to be void by the Senior Civil Judge, Ajmer, by his judgment dated the 30th September, 1959, in civil suit No, 116 of 1958 filed at the instance of the plaintiff himself and that he had been declared to be the nearest heir of Bal mukund deceased and as such entitled to all the property left by him including the suit premises. It was further alleged that the defendant defaulted in the payment of rent to the plaintiff or to the trustees appointed under the deed from the 1st May, 1952, to the 30th Tune, 1959, the last-mentioned date being the one on which he had vacated the suit premises, and thus arrears of rent to the extent of Rs. 1062/ 8/had fallen due against him and after giving the usual notice which is not disputed, he filed the suit, out of which this appeal arises, for the recovery of the aforesaid sum of Rs. 1062/ 8/- together with Rs. 5/8/- as costs of notice, the total amounting to Rs. 1068/ -. This suit was brought on the 20th August, 1960. To overcome the bar of limitation, the plaintiff pleaded that the suit was within time by virtue of the provision contained in Section 10 of the Limitation Act, 1908, which Act admittedly governs this case.

(3.) THE defendant resisted the suit. His main plea was that the suit was barred by time and further that he had spent a sum of Rs. 100/ on urgent repairs of the suit property with the consent of the other trustees and, therefore, he was entitled to a deduction of this amount even if it was held that he was liable to pay the arrears of rent alleged to be due against him.