PADHUM LAL Vs. TRIBENI SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs and the cross-appeal by the defendants in an action in which the plaintiffs sought to recover malikana with regard to some four annas odd interest. Of this malikana interest 10 dams were acquired by the plaintiffs in the year 1906. As regards the four annas odd interest it was obtained in the year 1921 from one Babulal. Both the Courts below have given the plaintiff a decree in respect of the four annas interest and with regard to that the cross- appeal of the defendants is preferred. So far as the 10 dams interest is concerned which is the subject matter of the plaintiffs appeal, the grievance which the plaintiffs have with regard to the finding of the learned Subordinate Judge is that Art. 131, Lim. Act, applies and therefore their action in respect of that interest is barred.

(2.) It is the contention of Mr. S.N. Roy who appears on behalf of the appellants in this appeal, that Art. 132 applies. Art. 131 is an article governing the establishment of a periodical recurring right, and it was contended by the learned Advocate who appears on behalf of the respondent that that in substance either was or should have been the plaintiffs case. But it is argued by Mr. Roy on behalf of the plaintiffs that the question of which article applies to any particular case depends on what that case is, and it is clear at any rate from the plaintiffs claim that they were not seeking to establish a periodical recurring right but they were seeking to recover the malikana in respect of this interest. Art. 132 enforces the payment of a money charge upon immoveable property, and the explanation states that malikana is deemed to be a money charge on immoveable property and therefore prima facie, Art. 132 applies and not Art. 131.

(3.) The basis of the learned Advocate's contention on behalf of the defendant respondents was that as it was shown that no malikana had been recovered by the plaintiffs the effect of the action was to establish the malikana right, and that brought it within Art. 131. The argument is put in another way. It is said that as it is clear on the face of the record itself that neither the plaintiff nor in one instance the predecessor-in-interest of the plaintiff had recovered the malikana, it was necessary for the plaintiff to show that the malikana had at some time been received.