BYOMKESH MUKHARJI Vs. MADHABJI MEPA MARU

JUDGEMENT

(1.) This appeal was heard by this Bench on 10 January 1939. The claim in the suit out of which the appeal arose was one for royalty and was brought against a number of persons. The Lower Court had passed a decree against defendant 3 for Rs. 9416-14-3 and against certain other defendants for a larger sum. Defendant 3 appealed to this Court though the other defendants did not. For the reasons given in the judgment of this Court dated 10 January 1939, we were satisfied that the defendant had worked certain minerals belonging to the plaintiff and had agreed with the plaintiff to pay royalty in respect of the minerals worked, and we were satisfied that if the claim was within time the defendant was liable to the extent of Rs. 9416-14-3 as found by the Court below.

(2.) No point had been made in the written statement or in evidence or argument in the Court below on the question of limitation. The point was taken for the first time in this Court that the plaintiff's claim was out of time. We held that though the point had not been pleaded or taken in the .Reported in AIR (1939) Pat 421. Court below we were bound to take notice of it. There were no materials before this Court upon which this question of limitation could be decided, and we therefore framed an issue and asked the lower Court to record its findings upon that issue. The issue was "Is the claim against defendant 3 barred by time?"

(3.) The parties, though given permission to adduce further evidence, did not do so, and the Court below upon the materials on the record, has come to the conclusion that the plaintiff's suit was within time and has returned a finding accordingly. The claim was in respect of royalty due for the period March 1930 to January 1931. It is to be observed that a sum of Rs. 900 had during that period been paid on account of that royalty. This Court had held that the royalty was pay- able not under any lease, as there was no lease between the plaintiff and defendant 3. This Court had held that royalty was payable under a special agreement evidenced in the three letters which are referred to in detail in the earlier judgment. Those letters, in my view, show that defendant 3 had agreed to pay royalty at the rate fixed in an earlier lease of these minerals which was not binding upon defendant 3. The agreement between plaintiff and defendant 3 was however entirely silent as to how and when the royalty was to be paid.