DHARNIDHAR Vs. RADHABAI

JUDGEMENT

(1.) MACNAIE , A.J.C. 1. It is not contested that the plaintiff and defendant 3 inherited the lands in suit on the death of their father, Ganesh. Narayan, defendant 1, had taken a lease of the lands from Ganesh and remained in possession after his lease expired until the plaintiff filed a suit for partition against defendant 3. In that suit a receiver was appointed and Narayan sent a notice to the receiver stating that he was holding under defendant

(2.) , Dharnidhar, who is the appellant in this Court. In this suit the plaintiff claims half the lease-money for the year 1922-23, Rs.1,550, together with half the mesne profits for the next two years, from defendants 1 and 2, alleging that they have been colluding in keeping the plaintiff out of possession. In reply Narayan stated that he was a lessee of defendant 2 from whom he had taken the fields annually for the years in suit. Defendant 2, Dharnidhar stated that he was joint with his brother Ganesh at the time of his death and that he had all along been in possession of the land in suit since the death of Ganesh. The only other plea which I need consider is that the claim for the year 1922-23 was barred by limitation. The trial Judge held that defendants 1 and 2 had combined to keep out the plaintiff on false pleas and both were liable to the plaintiff for full claim. A decree followed on this finding. Narayan has not appealed, this appeal being filed by Dharnidhar. 2. It is first urged that in spite of Dharnidhar's allegation in this suit it should be held that he was not in possession of the land in any way during the years to which this suit relates: it was only in 1926 when the receiver was attempting to take possession that he put forward his false claim to the land. It is urged that in the partition suit the plaintiff stated that she was in possession of the land. I hold that this suit must be decided on the pleadings made in it. Until the appellant came to this Court he did not deny that Narayan was in possession of the lands as his tenant. Had he stated in the lower Court that he had done nothing to obstruct the possession of the plaintiff during the years in suit the plaintiff might have adduced evidence to the effect that but for the action of the appellant Narayan would have delivered possession to her. I agree with the finding based on the pleadings of the parties that the appellant and Narayan acting in concert prevented the plaintiff from obtaining possession during the years in suit.

(3.) CLEARLY they referred to a custom in Madras. I am not aware of any custom of this nature in Berar. In the Central Provinces dates have been fixed for payment of rent by tenants under Section 61, Ten. Act, and these dates precede the expiry of the agricultural year. So far as my experience goes, it is usual, when land is leased, either to take a payment in advance or to agree that payment should be made soon after the crop is harvested. The plaintiff, then, has failed to show that the claim relating to the year 1922-23 is within time. The suit was filed on 1st March 1926. (The judgment here discusses evidence and holding that the finding that the mesne profits for the subsequent years also was Rs. 2,500 was justified, it proceeds). The appeal contains a ground that interest charged is excessive, but 12 per cent per annum is the usual rate to allow on mesne profits. The amount decreed will, therefore, be altered by excluding mesne profits with interest for the year 1922-23. Costs in this Court will be borne as incurred.