MOHAMMAD HUSAIN Vs. MOHAMMADI BIBI

JUDGEMENT

(1.) THE parties to the suit out of which this appeal arises are near relatives. THE plaintiff has brought this suit against the heirs of his brother, Ahmad Husain, for establishment of his right to recover rent for the site of the house occupied by the defendants at the rate of eight annas per mensem and for recovery of arrears of rent for nearly three years. Both the Courts below have dismissed the suit on the ground of limitation. THEy are of opinion that Article 120 of the first Schedule of the Limitation Act applies to the suit and bars the claim. That Article would be applicable if there is no other Article in the Schedule which would govern a claim of this description. It is contended on behalf of the appellant that the Article which is applicable to this suit is Article 131, which provides a limitation of twelve years for a suit to establish a periodically recurring right to be computed from the date when the plaintiff had first been refused the enjoyment of that right. A right to recover rent is a recurring right and the present suit is one for establishment of the plaintiff s right to recover rent for the site of the house occupied by the defendants. It is true that in the plaint the prayer, as framed, is a prayer to assess rent, but that is in substance a prayer to establish the plaintiffs right to obtain rent at a particular rate. THE claim is clearly one to establish a periodically recurring right and, therefore, the suit is governed by Article 131 and Article 120 is inapplicable. It was held by the Mardas High Court in Jagannath Pandia v. Muthia Pillai 14 M.L.J. 477 that a right to establish a periodical right to recover rent is governed by Article 131. Of course, it will be open to the defendant to show that the plaintiff was refused the enjoyment of the right claimed by the defendants predecessor-in-title at some time prior to twelve years preceding the date of the suit. If they can do so, the claim is beyond time, otherwise it would not be time- barred as the title of Ahmad Husain accrued, only under the deed of gift executed in his favour by his father on July 30th, 1900, and tins suit was filed on July 30th, 1912. However, the case has not been tried on the merits and these questions have not been determined. I allow the appeal, discharge the decrees of both the Courts below and remand the case to the Court of first instance with directions to re-admit it under its original number in the register and to dispose of it according to law. Costs here and hitherto will be costs in the cause.