RADHABALLABH PRASAD NARAIN SINGH Vs. RAGHUNATH LAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in a rent suit. He is the proprietor of a share in village Masahi. Four annas share in that village was given by him on lease to the defendants first party on 6 May 1929, on an annual rent of Rs. 275-8-0 for a period of five years, viz., 1337 to 1341 Fasli. The kabuliyat was executed by defendant 1; but it is the plaintiff's case that both defendant 1 and defendant 2, his brother, are joint and were jointly interested in the thica. On 11 May 1929 the plaintiff on taking a loan from defendant second party of Rs. 4000 gave the same share to him in zarpeshgi together with certain ziraits which had been excluded from the thica lease in favour of defendants first party. In lieu of interest the zarpeshgi deed authorized the defendant second party to receive the rent due from time to time from the thicadar in respect of the thica lease and also to enjoy the usufruct of the zirait. No payments were made on account of rent by the thicadar either to the plaintiff or to defendant second party. The latter demanded from the plaintiff redemption of his principal money as the arrangement for satisfaction of the interest on it had not been successful.

(2.) The plaintiff on 10 May 1935, paid off the zarpeshgi of defendant second party thereby redeeming the four annas share. On 29 August 1925 he instituted this suit impleading defendants first party, the thicadar and defendant second party, the zarpeshgidar, claiming thica rent for five years 1337 to 1341 Fasli. The defendant second party in substance supported the claim of the plaintiff, while denying any personal responsibility by himself to the plaintiff for the claim and asking for his costs. The defendants first party took several objections to the claim. They pleaded that the plaintiff was not the right person to sue for the money, as the redemption--the fact of which they questioned--did not convey to him the arrear rents accrued the absence of a separate written assignment of those dues. Secondly, they resisted the claim on the ground of limitation. Thirdly, they denied to have been permitted to enjoy possession of the property, the subject of the lease; and finally, it was alleged that defendant 1 only had" taken the thica and defendant 2 had no concern with it and was not liable.

(3.) The Munsif decided all the issues, except No. 2, in favour of the plaintiff. As regards No. 2, he held that the three year period of limitation applied under Article 2 of Schedule 3, Ben. Ten. Act, and therefore the plaintiff's claim for 1337 and 1338 was barred, and the remainder of the claim was alive. On the remaining points his findings were in favour of the plaintiff and he gave a proportionate decree. On appeal the District Judge reversed the finding of the Munsif on point No. 1, holding that the actionable claim for arrears of rent could only be transferred by an assignment in writing and not by mere redemption of the zarpeshgi. He did not decide the other issues.