FOUZI LAL KURMI Vs. SMDHANA KUMARI DEVI

JUDGEMENT

(1.) This is the defendants first party's appeal arising out of two actions or rent for the 2 annas kist of 1334, whole of the years 1335 and 1336, and 14 annas kist of 1337 B. S. Excepting with regard to the last 2 annas kist of 1335, the Judge in the Court below has given a decree to the plaintiff for the whole of the rent claimed. There is no appeal with regard to the last 2 annas kist of 1335 and there, fore it is unnecessary to make any statement in that regard. As regards the 2: annas kist of 1334 it is contended on behalf; of the appellants that the action of the plaintiff was barred by limitation. The right to sue for this kist, it is admitted, continued in the predecessor of the plaintiff, i. e. defendant 2, up to 12 April 1931,

(2.) The plaintiff's claim with respect to that kist arose under an assignment dated 11 May 1931. It is obvious therefore that one the date of the assignment the claim for that instalment of the rent was barred by limitation, and, in any event, the appeal must be allowed as regards that part of the claim. As regards the other years the position was this. Two suits relating to two holdings--one Gopalpur and the other Gadai--were brought. The area of the first was approximately 409 bighas at a rent of Rs. 409 (fixed) or Re. 1 per bigha, while the area of the second holding was 358 bighas at a rent of Rs. 358-4-0. The defendants resisted the suit on the footing that they were entitled to remission of rent by reason of diluvion of the greater part of the area of the holdings. The learned Judges in the Courts below have held as a fact that in 1335 the lands were completely under water.

(3.) I have already stated my reasons for the conclusion that the claim for the year 1334 was barred by limitation and therefore this question does not arise with regard to that year. As regards the year 1336, 100 bighas of the diluyiated lands had reappeared and re-formed in the holding Gopalpur on the Bihar side of the Ganges. So far as the other holding is concerned, 65 bighas had reappeared on the Bihar side of the Ganges. The same may be said to be the state of affairs in the year 1337. The defendants pleaded in para. 7 of their written statement that: So long the lands remained under water or sandy, i.e. unfit for production of crops, there would be remission of rents for the period and further that when the defendants enjoyed the lands after re-formation, the defendants would pay rent and defendants title remaining intact.