MALIK MUHAMMAD KARIM Vs. GANGA PANDE

JUDGEMENT

(1.) We need not call upon the learned Counsel for the appellants to reply. The suit clearly falls within Section 93(h) of the Bent Act (XII of 1881). The only question is whether it falls within the first category of suits mentioned in that clause, namely, suits by recorded co-sharers for their recorded share of the profits of a mahal, or within the second category of suits for a settlement of accounts. If it falls within the first category, then under the first paragraph of Section 94 the period of limitation is three years from the day when the share became due: if it falls within the second category, then, under the third paragraph of Section 94, the period of limitation is one year from the day on which the right to sue accrued. Mr. Justice Burkitt has held that the suit is one for a settlement of accounts, and that having been brought more than one year from the day on which the right to sue accrued, it was barred by paragraph 3 of Section 94. Now in order to see whether the suit falls within the first or the second category mentioned in Section 93(h), it is necessary to look at the plaint. The suit purports to be brought by certain co- sharers of the village against certain other co-sharers. It is headed as a "claim for the recovery of Rs. 516-11-6 principal and interest after adjustment of account from 1301 to 1303 Fasli, on account of lands in mauza Poni, pargana Ghosi." It sets forth that the profits arising from the plaintiffs share during the years in question amounted to Rs. 2,000 odd, out of which the plaintiffs received from the tenants Rs. 1,600 odd, and that the remaining sum of Rs. 436-11-6 due to the plaintiffs was appropriated by the defendants, first party. It further alleges that out of the profits for the years in question the defendants have collected Rs. 436- 11-6 on account of the plaintiffs share in excess of the defendants own share of the profits, and have not paid it in spite of repeated demands. The only relief prayed in the plaint, apart from costs, is that a decree for the recovery of Rs. 436- 11-6 principal, and Rs. 80 interest, in all Rs. 516-11-6 maybe passed in favour of the plaintiffs against the defendants. There is no specific prayer referring to accounts. The only allusion to an account is in the heading of the plaint, where the claim is described as one for the recovery of Rs. 516 "after adjustment of accounts." It is thus clear that the main and substantial object of the suit is to recover from the defendants with interest a specific sum which the defendants are alleged to have recovered from the tenants in excess of their own share of the profits and to hold on account of the plaintiffs share. For the purpose of ascertaining the correctness of the amount claimed, but for no other purpose, the Court is asked to adjust the accounts. Now this being the nature of the claim, the ruling of the Full Bench in Rohan V/s. Jwala Prasad (1894) I.L.R. 16 All. 333, appears to us to show clearly that the suit falls within the first category mentioned in Section 93(h) and not within the second category. The Full Bench held in effect that where for the purposes of a suit in which a share of profits is claimed by a recorded co-sharer, either against the lambardar or against one or more or all of the other co-sharers, the Court is asked to adjust the accounts, what has to be looked to is the main and substantial object of the suit. If the main and substantial object of the suit is to obtain a settlement of accounts, and the obtaining a decree for a share of the profits is only the ulterior object of obtaining such settlement of accounts, then the suit is to be regarded as a suit for settlement of accounts. If the main and substantial object of the suit is to recover a share of profits which the defendant has received in excess of what he is entitled to, and if the Court is only asked to go into the accounts incidentally to that main object and for the purpose of determining whether the sum claimed is due, then the suit is not a suit for settlement of accounts merely, but it is a suit for a share of profits within the first category of Section 93(h). Now the claim in that case very closely resembled the claim in the present case. There a specific sum was claimed by a recorded co- sharer against four other co-sharers in the village, not against the lambardar, as a share of the profits which the defendants were alleged to have realized in excess of what they were entitled to. The plaint asked for the recovery of the amount claimed "by means of adjustment of account," the same expression as is used in the plaint before us in the only reference which it makes to accounts. The prayer was there, as here, not any prayer referring to a settlement of accounts, but a decree for the specific amount claimed with interest. It was held by the Full Bench that, notwithstanding the reference to an adjustment of accounts, the suit fell within the first category of Section 93(h) and was for the purposes of limitation to be regarded as a suit for a share of the profits of a mahal. We cannot agree with the learned Judge who heard this appeal that the present suit falls within the second category of cases mentioned by the Full Bench. We think that it clearly falls within the first category. The learned pleader for the respondent has referred to au earlier Full Bench case of Indo V/s. Indo (1893) I.L.R. 16 All. 28. It is not necessary to discuss that case beyond saying that if the decision lays down anything inconsistent with the case of Rohan V/s. Jwala Prasad (1894) I.L.R. 16 All. 333, it must be taken to have been overruled by that case, which was decided by six Judges of the Court, including the three Judges who were parties to the former case.

(2.) Mr. Justice Burkitt does not in his judgment discuss the other points raised by the memorandum of appeal to this Court. We have heard the pleader for the respondent in support of these pleas, and we think there is no force in any of them.

(3.) We allow this appeal, set aside the judgment of Mr. Justice Burkitt and dismiss the appeal to this Court with costs. [A similar case was decided by Banerji, J., on the 6 June 1900, Section A. No, 891 of 1899, the judgment in which is given below ..--ED.] .Banerji, J. The suit which has given rise to this appeal was brought under Clause (h) of Section 93 of Act No. XII of 1881, for the plaintiffs recorded share of profits for the years 1302, 1303 and 1304 Fasli. The plaintiffs own a fourth share in Khata No. 21, and an eighth share in Khata No. 22, and they seek to recover the amount claimed as arrears of profits in respect of those shares for the three years mentioned above. The Lower Appellate Court was of opinion that the suit was one for a settlement of accounts, and applying to the suit the limitation of one year prescribed by Section 94 of the Act, has dismissed the claim in respect of the profits for the years 1302 and 1303 Fasli on the ground of limitation. This view of the learned Judge is clearly erroneous. As I have said above, the suit was in terms a suit for profits and not one for a settlement of accounts. The distinction between the two classes of suits was explained by the Full Bench in the case of Rohan V/s. Jwala Prasad (1894) I.L.R. 16 All. 333. It was there held that a suit for profits does not become a suit for a settlement of accounts because the Court may have to take an account for the purpose of granting a decree to the plaintiff. It is only when the main object of the suit is to have an account taken from the defendant that the suit becomes one for a settlement of accounts. Such is not the case here. The learned Judge of the Lower Appellate Court thinks that because an account had to be taken of the rent payable by the defendants for the khudkasht land held by them, the suit must be taken to be a suit for a settlement of accounts. Having regard to the Full Bench ruling referred to above, that view cannot be supported. The suit was in terms one for profits, and it was in substance a suit of that description. This case is very similar to the case of Malik Muhammad Karim V/s. Ganga Pande L.P.A. No. 5of 1899 decided on the 3 of May 1899, and following the ruling in that case I hold that the present suit is one for profits and not for a settlement of accounts. No portion of the claim was therefore barred by limitation.