SRIJUT MANOHAR DAS MAHANTA Vs. BROJENDRA LAL DAS

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of Rs. 615-2-5 gandas by the sale of Mouza Jonardanpur which belongs now to defendants Nos. 12 and 13. The case of the plaintiff who is the Mohanta of the gadi of Rajgunj Asthal is that this property is charged with a yearly payment to him of Rs. 129-1-1-1 kant. One Baidya Nath Tewari who was the predecessor of defendants Nos. 3 to 11 promised to pay Rs. 120 (sicca) per year to the then Mohanta Udbadhas for the expenses of the idols of the Asthal and as security for the payment of the said annual amount he first of all promised to make over 101 bighas of land. This land, however, not being demarcated it was not made over to the Mohanta. But subsequently a partition having taken place between Baidyanath Tewari and the heirs of his brother Gopinath Tewari under the partition deed it was provided that the predecessor of defendants Nos. 1 and 2 should pay to the Mohanta at the rate of Rs. 120 (sicca) per annum from the income of Jonardanpur. This amount was paid for many years to the Mohanta by the predecessors of defendants Nos. 1 and 2; and at one time the predecessor of the plaintiff obtained a decree for arrears of this money against the predecessor of defendants Nos. 1 and 2. At the time of the partition Touzi No. 21 within which was comprised the Mouza Jonardanpur was divided up amongst the co-sharers and separate accounts were opened. That portion of the touzi which contained Jonardanpur was sold in January 1907 for arrears of revenue and was purchased by defendants Nos. 12 and 3. The plaintiff contended that as only a share of the estate was sold it was sold with all the encumbrances and that this payment of the annual amount of Rs. 120 (sicca) was an encumbrance and the purchasers were still liable to pay this amount. The case of defendants Nos. 12 and 13 with whom we are now concerned would seem to be that there was no charge on the property, that if so, this charge was not an encumbrance and lastly that they were purchasers without notice and, therefore, they were not liable to pay the money.

(2.) The first Court decreed the suit. He held that a valid charge was created on the property and that this charge was not extinguished by the revenue sale. In appeal the learned Subordinate Judge held that a valid charge was created on the property by Baidya Nath Tewari the predecessor of defendants Nos. 1 and 2. He however, held that as the defendants were purchasers without notice that charge was not enforcible against Jonardanpur in their hand and he further found that the charge created on Jonardanpur by Ex. 4 was not an encumbrance within the meaning of Section 54 of the Revenue Sale Law. He further found that the plaintiff's case was barred by limitation, because he had not brought his case within 12 years from the date of, the purchase at the revenue sale.

(3.) The plaintiff has appealed to this Court and he contends that the charge created by Baidya Nath Tewari is an encumbrance and that, therefore, as defendants Nos. 12 and 13 purchased at the revenue sale only a share in the estate under Section 54 of Act XI of 1859 they purchased it burdened with the charge, and secondly he argues that the suit is not barred by limitation. It is a suit to enforce payment of money charged on an immoveable property and the liability was a recurring one and limitation runs from each period for which the money was due. The respondents who are traversing both these points, however, contend that no charge whatever was created on the property. I shall deal with this point first of all, because obviously if no charge was created on the property by Baidya Nath Tewari then there is nothing more to be said and the plaintiff's suit must fail. Both the lower Courts have found that a valid charge was created on the property. No doubt there is no document which specifically charges Jonardanpur with the payment of this Rs. 120. The only document that we have is the Ex. 4 in which it is stated that in the place of the land which he (Baidya Nath Tewari) promised to the Mohanta Rs. 120 a year would be paid from the income of Jonardanpur. There further evidence that this amount had been paid for more than 100 years. The lower Courts have, I think, rightly followed the principle laid down in the case of Mana Vikrama V/s. Karnavan Gopalan Nair 30 M. 203. There it was laid down that the fact that I an allowance had been received out of certain lands for a long period from several successive owners is proof of a grant of a perpetual allowance charged on such lands. This principle, I think, may be applied to the present case. This, money was being paid for more than 100 years which the land must have obviously passed through a number of hands. I think the lower Courts were entitled to draw an inference from this that there was a charge, on Jonardanpur to pay to the Mohanta every year the sum of Rs. 120 (sicca).