CHARAN SINGH Vs. DIWAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against him by the plaintiff-respondents for their share of profits for the years 1333F to 1338F. The plaintiffs case was that they and the defendant were co-sharers of half and half in the tenancy described in the plaint and the defendant had been in possession over the whole of it and consequently they (the plaintiffs) were entitled to recover Rs. 3,682-2-0 for principal and Rs. 1,399-2-1 for interest. The defendant contended that the claim was time-barred and plaintiff was not entitled to interest. The learned Subordinate Judge found against the defendant and decreed the suit. The defendant has come here in appeal.

(2.) The learned Counsel for the appellant argues that the plaintiffs share is not half, but is only a quarter. There was a litigation between the parties, and the Board of Revenue decided in that litigation that the parties share in the tenancy in dispute was half and half. Karan Singh who was also entitled to a share in the tenancy was not represented properly in that litigation. He was then a minor. On coming of age Karan Singh filed a suit in 1932 in the revenue Court for his share in the tenancy. On 13 August 1934 the Board of Revenue has decided that Karan Singh's share in the whole of the tenancy is half and the share of the plaintiffs is only a quarter. The plaintiff-respondents were also parties to this case of Karan Singh and they are bound by the decision of the Board of Revenue. This decision was made by the Board of Revenue after this appeal had been filed. The Board of Revenue decision was filed by the appellant with an application on 20 July 1935 along with an affidavit showing all the facts relating to the decision. A copy of the affidavit and the application was served on the learned Counsel of the respondents and no counter-affidavit has been filed by the respondents.

(3.) This decision of the Board of Revenue settles the matter as regards the extent of the share of the plaintiff-respondents. Their share in the tenancy in dispute is only a quarter and consequently they are entitled to claim profits for only one- fourth share. It was urged by the learned. counsel for the appellant that suit for profits for more than three years was time-barred. He relies on Art. 89 and he argues that it applies to the case. The question for consideration is which article applies to the present case. The suit is between two co-sharers for a share of profits for which there is no article in the Limitation Act. Art. 89 applies to a suit of a principal against his agent for move-able property received by the latter and not accounted for. In a suit for accounts by the principal against his agent a principal is not restricted to an account merely for three years preceding the suit but is entitled to an account for the entire period without any bar of time. The present suit is not one for accounting and Art. 89 does not apply to the present suit. Art. 120, Schedule 1, Lim. Act, applies.