DUNI CHAND Vs. JAGDEV

JUDGEMENT

(1.) This second appeal has arisen in the following circumstances. The plaintiffs, one Hari Kishan and some others jointly owned ten shops situate in the town of Amritsar including the shop in suit. By mutual arrangement inter se the co- sharers, the plaintiffs and Hari Kishan were to receive the rents and profits of the shop in dispute in equal half shares. In pursuance of this arrangement, the plaintiffs and Hari Kishan were letting out a half undivided share of the shop each and receiving the rent from the tenant or the tenants. In 1930 Hari Kishan mortgaged his share in the ten shops, including his right under the arrangement mentioned above in respect of the shop in dispute, to Bodh Raj. In 1934 Bodh Raj mortgagee and the plaintiffs leased out the shop in dispute by means of two separata rent deeds, each relating to one-half of the shop, to Kishan Chand Gogal Chand who sub-let the shop to Ram Saran Kundan Lal. In May 1938, Bodh Raj got a rent deed from Ram Saran Kundan Lal in respect of the whole of the shop. In January 1939, the aforesaid Bodh Raj let the whole of the shop to Bhagwan Das Sham Das. In June 1941 the plaintiffs brought a suit against Bodh Raj, Bhagwan Das and Sham Das, the relief being primarily claimed against Bodh Raj. The suit was for recovery of a sum of Rs. 713 with future interest. The sum of Rs. 713 was claimed on account of what was described as mesne profits of one-half of the shop for the period 16 January 1939 to 15 June 1941 with interest. It was alleged in the plaint that Bodh Raj had, without any lawful right, got a rent deed in respect of the whole of the shop executed in his favour and had realized the entire rent of the shop from the tenants. It was further alleged that the shop had been let out ostensibly on a monthly rent of Rs. 30 but in fact Bodh Raj defendant had been receiving rent at a much higher rate. The plaintiffs claimed their half share of the rent at the rate of Rs. 23 per mensem and also claimed interest on the various sums as they fell due to them for the period during which the same had been wrongfully withheld from them by Bodh Raj. The plaintiffs were granted a decree only for Rs. 435 which represented their one-half share of the rent for the period mentioned above at the rate of rent stipulated in the rent deed. On 4 August 1945 the plaintiffs brought the present suit against Bodh Raj for recovery of their share of the rent for the period 16 June 1941 to 4 August 1945, and also for issue of a perpetual injunction restraining him from realizing in future his share of the rent from the tenants and for mandatory injunction to the said tenants not to pay him in future his share of the rent. Bhagwan Das Sham Das and Hari Kishen were also impleaded as defendants. The suit was resisted by Bodh Raj on a number of pleas on which the learned trial Judge framed the following issues: 1. Is this suit barred under the provisions of Order 2, Rule 2 and Section 11, Civil P.C.?

(2.) Is Mt. Kahn Devi a necessary party? If so, what is the effect of not impleading her in this suit?

(3.) Is the suit in respect of the claim which is beyond three years previous to this suit, within limitation?