MUKHLAL RAI Vs. BABU HIRANAND SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption. On the 8 of January 1914, the defendants Nos. 3 and 4 gave a perpetual lease to the present defendants- appellants before as, of the proprietary rights in an area of 23 bighas odd. Under the lease a nazrana of Rs. 12,999-13-6 was paid and an annual rent of Rs. 23 fixed. In the year 1915, a co-sharer (other than the present plaintiff-respondent) brought a pre-emption suit, which was dismissed both by the Court of first instance and by this Court on appeal. The transferee is a co-sharer in the mahal. The pre-emptor in the first suit was also a so sharer in the same mahal but apparently judging from the judgment of this Court, dated the 17 of May 1917, the transferor, the transferee and the pre emptor were all co-sharers in different thoks and, therefore, under the custom alleged, this Court held that the plaintiff had no right of pre emption as against the transferee. There was a question raised in that case as to whether or not the transfer was in reality a sale dressed up in the form of a lease, but the question was not decided. The present suit was brought by the plaintiff respondent on the 14 of August 1917, some 3 3/4 years after the transaction in question. The plaintiff's case as set forth in his plaint and also emphatically set forth in his evidence, is that the transfer in question was a bona fide prepetual lease and not a sale dressed up in the form of a lease; that there is a custom prevalent in the village under which he as a nearer co-sharer, that is, a co-sharer in the same thok as the transferor, is entitled to a prior right tothe lease as against the defendants-appellants. Among other defenses the defendants pleaded that the suit was barred by limitation; that there was no custom at all; that assuming that there was a custom, it did not cover leases at all but only sales and mortgages. They also pleaded that in the present case what had been transferred was not a share but only specific lands and that the custom, if any, only came into operation on the transfer of a share and not of specific plots of land. The Court of first instance held that Art. 120 of the Limitation Act applied as the transaction was in the form of a lease, that the suit was, therefore, within time and that the custom was established and that the custom did cover a lease as well as a sale or a mortgage; that the transfer was a transfer of proprietary rights and, therefore, was equivalent to the transfer of a share and the plaintiff was, therefore, entitled to a decree, It accordingly decreed the claim conditional on payment of money.

(2.) The defendants have appealed. The argument taken before us is that whether the transaction was a sale or perpetual lease, the custom set up by the plaintiff is not proved; that the suit is barred by time; that the plaintiff must be deemed to have assented to the transfer by reason of his great delay in instituting the suit.

(3.) Taking the first point (limitation), we may point out first of all that the plaintiff's case is not that the transfer in question was a sale dressed up as a lease. He lays considerable emphasis on the fast that the transfer is a lease, pure and simple, and that his suit is within time as Art. 120 of the Limitation Act applies. The defendants have nowhere asserted that the transfer was a sale. There was no issue between the parties as to whether the transaction was a sale or lease. The case must, therefore, clearly be decided on the clear assumption that the transfer was a perpetual lease and not a sale. This being so, it is clear that Art. 10 of the Limitation Act does not apply and that Art. 120 of the Limitation Act does apply and the suit as it stands is, therefore, within time.