PATURU VISWANATHAM Vs. GUNUPATI BALARAMI REDDI

JUDGEMENT

(1.) These three second appeals are between the same parties and relate to the recovery of an amount from the respondent in all the second appeals either as rent or as damages for use and occupation. The appellants along with others were co-sharers in certain Khandriga known as Patuvari Khandriga of an extent of about 25 acres. This land was in the possession of one Gunupati Balarami Reddi for a considerable length of time. In 1931 the Patuvari people who were the owners of this Khandriga instituted a suit for partition amongst themselves and impleaded in that suit as the sixth defendant Balarami Reddi also. Balarami Reddi pleaded in that suit that he had acquired permanent rights of occupancy in the land. So far as the documentary evidence goes this land was granted on lease to one Veeraraghava Reddi, the maternal uncle of Balarami Reddi, on the 28 of August, 1896, for a period of nine years under a registered lease. After the expiry of that lease Balarami Reddi's family seems to have continued in possession and on the 22nd of August, 1917, there was a further lease to Balarami Reddi by all the co-sharers for a period of eleven years on a rent of Rs. 300 per year for the first three years and Rs. 360 per year for the later eight years. This document, however, was not registered. But even after the expiry of the period fixed under that unregistered lease, admittedly, Balarami Reddi continued in possession. In the partition suit it was held that Balarami Reddi did not acquire occupancy rights in the Khandriga lands and that his possession was that of an yearly tenant as he was paying rent to the co-sharers. The suit as against him was therefore decreed, granting a decree in ejectment. There was an appeal to this Court against the decision in the suit, O.S. No. 22 of 1931 in A.S. No. 225 of 1942. This Court confirmed the finding of the trial Court that Balarami Reddi did not acquire occupancy rights in the land. He was directed to pay mesne profits at Rs. 360 per year to the co-sharers. This judgment of the High Court is dated 23 November, 1943. While the proceedings in the partition, suit were going on, the present appellants some of the co-sharers instituted a suit, O.S. No. 61 of 1936 on the file of the Sub-Court, Nellore, which was really an earlier suit O.S. No. 472 of 1934 instituted in the Court of the District Munsiff and subsequently transferred and re-numbered as stated above. In that suit, the plaintiffs claimed for recovery of the appellants share of rent or damages for use and occupation for faslis 1341, 1342 and 1343 from Balarami Reddi in respect of the suit land. For the subsequent period, faslis 1344 to 1349 a further suit, O.S. No. 222 of 1940, was filed on the same basis and for faslis 1350 to 1353, O.S. No. 416 of 1944 was filed. The suit, O.S. No. 61 of 1936, was disposed of by the learned Subordinate Judge of Nellore along with the partition suit and he granted a decree to the appellants for rent at the rate of Rs. 550 per year for the faslis 1341 to 1343 and also for the subsequent faslis up to 1351. The decree was confined only to the share of the appellants which was 1948. There was an appeal against the decision of the learned Subordinate Judge to the District Court, Nellore. The learned District Judge modified the decree of the Subordinate Judge by reducing the rate of rent to Rs. 360 instead of Rs. 550 and also disallowing the decree relating to faslis other than 1341, 1342 and 1343, on the ground that there was no prayer in the plaint for a period of more than three faslis. Against this decision of the learned District Judge, S.A. No. 2029 of 1945 is filed by the appellants. The other two suits, O.S. Nos. 222 of 1940 and 416 of 1944, were disposed of by the District Munsiff, Nellore. He granted a decree on the basis of rent of Rs. 360 per year for faslis 1347 to 1349 in O.S. No. 222 of 1940 and faslis 1351 to 1353 in O.S. No. 416 of 1944. He disallowed for the other faslis on the ground that the claim was barred by limitation, treating the suit as one for rent governed by Art. no of the Limitation Act. Against the decision of the learned District Munsiff in both the suits, there were appeals to the Subordinate Judge of Nellore. The learned Judge dismissed the appeals and confirmed the decree of the learned District Munsiff. S.A. No. 1696 of 1945 is against the decision in O.S. No. 222 of 1940 and S.A. No. 1695 of 1945 is against the decision in O.S. No. 416 of 1944.

(2.) Two questions have been raised in these second appeals. The first question is whether the Courts below were right in reducing the amount claimed in the plaint at the rate of Rs. 550 per year to Rs. 360 per year; second, whether the decision of the Courts below that the claim for faslis 1344 to 1346 and 1350 was barred by limitation is correct.

(3.) As regards the first question in S.A. No. 2029 of 1945 we have the finding of the learned District Judge of Nellore based on a consideration of the oral evidence that the fact that the defendant agreed to pay a sum of Rs. 550 per year is not made out; and that the plaintiffs were entitled to a decree only on the basis of rent at Rs. 360 per year. As the finding is based on an appreciation of oral evidence and as all the Courts have practically agreed on one ground or another that that is the proper rate to which the plaintiffs could be entitled to, I see no reason to differ from the finding of the Courts below on this point. The plaintiffs will, therefore, be entitled to rent at Rs. 360 per year as found by the Courts below.