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PETITIONER: RAMA SHANKAR SINGH & ANR.

       Vs.

RESPONDENT: MST. SHYAMLATA DEVI AND ORS.

DATE OF JUDGMENT: 10/10/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M.

CITATION:  1970 AIR  716            1969 SCR  (2) 360

ACT:        Indian Contract Act (9 of 1872), s. 43-Liability   to pay  rent-If joint.         Bihar   Tenancy  Act,   ss.  67(1),  184  and   193- Limitation-Plea   not taken in written statement-Arrears  of rent--Rate of interest.

HEADNOTE:     The  plaintiffs  defendants 5 to 7 and the  ancestor  of defendants  8  to  13  leased the  forest  rights  in  theft villages  to  defendants 1 and 2 at an annual  rental.   The deed mentioned the share of each lessee and the annual  rent for   the  purpose  of  indicating  what  amount  would   be contributed  by  each  .of them  towards  the  rent  jointly payable by them.  It was stated in the lease that the entire lease would be terminable on default of payment of rent  for two. consecutive years and the lessee shall pay interest  at Re.  1 per cent in case of default, and  that  the   lessors either  separately  or  jointly  shall  realise  the  amount according to their choice.  Defendant 3 was a transferee  of a  portion  of  lessees’  interest from  defendant  1.   The plaintiff-lessors flied a suit in September 1954 claiming  a decree of their share of rent for 1356 to  1360  Fasli   and interest  thereon.   The  plea  that  suit  was.  barred  by limitation   was   not  taken  in  the  written   statement. Defendant  2  died  and  his  heirs   were  substituted   as defendants 2 and 2(a).  The trial court decreed the suit. On appeal,  the High Court held that (i) the defendants 1 to  3 were  liable to pay the amount of the annual rent up to  the extent  of their respective shares; (ii) as the  lease  deed granted  a lease of forest rights, the suit was governed  by Art.  2(b)(1) of Schedule HI of the Bihar Tenancy Act,  1885 and  consequently the suit in respect of rent for  1356  and 1357  Faslis was barred by limitation; and (iii) in view  of s. 67 of the Bihar Tenancy Act the plaintiffs could claim at the rate of 61/2% per  annum only.     In appeal. this Court,     HELD:  The defendants 1 to 3 were jointly and  severally liable  to pay the plaintiff’s share of the rent  for  1358, 1359  and 1360 Faslis and simple interest thereon  at  61/4% per annum up. to date.     (i)  The  deed mentioned the share of each  lessee   and

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the   annual rent for the purpose of indicating what  amount would  be  contributed  by each of  them  towards  the  rent jointly payable by them.  The joint liability of the lessees was clearly indicated by the provision that the entire lease would  be terminable on default on payment of rent  for  two consecutive  years.   Having regard to s. 43 of  the  Indian Contract  Act,  1872  defendants 1 and 2  were  jointly  and severally  liable  to  pay the rent, and  the  liability  of defendant 3 stood on the same footing. [362 H--363B]     (ii)  Under  s.  184 of the Bihar  Tenancy  Act  a  suit instituted  after the expiry of the period of limitation  is liable  to  be dismissed though limitation is  not  pleaded. The respondent was rightly allowed to  raise  the 361 point  of  limitation though the plea was not taken  in  the written statement. [363 C]      The  lease-deed granted a lease in  respect  of  forest rights  only.   It  gave the lessees the right  to  cut  and appropriate  trees  of  certain  types and  the  fruits  and flowers  of certain fruit bearing trees.  The right to  open roads  and  to construct buildings were  incidental  to  the right to enjoy a forest produce.  The suit was for  recovery of rent in respect of forest produce and having regard to s. 193  of the Bihar Tenancy  Act was governed by Art.  2(b)(1) of  the  Schedule  III therefore.   The  special  period  of limitation applied though the claim for arrears of rent  was claimed on a registered document. [363 D--F]      The  suit  in  respect of rent for 1356  and  1357  was barred by limitation. Abdulullah v. Asraf Ali, 7 C.L.J. 152, Bande  Ali  Fakir  v. Amud   Sarkar,  10  C.W.N. 415 and Mackenzie  v.  Haji  Syed Muhammad  Ali Khan, I.L.R. 19 Cal. 1, approved.      (iii)  Interest was payable at the rate of  6-1/4%  per annum  only.   By s. 193 of the Bihar Tenancy  Act  all  the provisions  of the Act applied to the suit.   Section  67(1) provides that arrears of rent shall bear simple interest  at the  rate  of 61/2% per annum.   The section  overrides  the contractual stipulation that the interest be  payable at  1% per  annum.[363 F-G]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  23  of 1966.      Appeal from the judgment and decree dated May 11,  1962 of  the Patna High Court in Appeal from Original Decree  No. 169 of 1958.      U.P. Singh, for the appellants.      Sarjoo Prasad and R.C. Prasad,  for  respondents   Nos. 1 and 2.      The Judgment of the Court was delivered by      Bachawat J.  The plaintiffs, defendants 5 to 7 and  the ancestor  of  defendants  8  to 13  were  the  sixteen  anna proprietors  of certain villages in district Shahbad.  By  a registered   deed  dated  October 3, 1944  they  leased  the forest rights in the villages to the defendants 1 and 2  for a   period   of  9  years  ending  Bhado  30,   1360   Fasli corresponding to September 2, 1953 at an annual. rent of Rs. 16,000. -The plaintiffs had 6 annas share in the proprietary rights  in  the villages and Rs. 6,000 was  fixed  as  their share  of  the  annual  rent.  The defendant  No.  3  was  a transferee  of  a  portion  of  a  lessees’  interest   from defendant 1.  On September 3, 1954 the plaintiffs instituted a   suit  claiming  a decree against defendants 1 and 2  for

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Rs.  36,405 on  account of their share of the rent for  1356 to 1360 Faslis and interest thereon at 1% per annum.  During the  pendency  of the suit, defendant 2 died and  his  heirs were substituted as defendants 2 and  2(a).  The Trial Court decreed  the  suit  on  contest  against  defendants  2  and sup./69--6 362 2(a)  and  ex-parte against defendants 1 and 3  with  future interest and costs.  On appeal, the High Court held that  (1 )  as   defendant 2 had only 4 anna share  in  the  lessees’ interest  as  mentioned  in the lease deed  and  as  he  had acquired  another  one anna share in  the  lessees  interest subsequently, defendants 2 and 2(a) were liable to pay  only 5 annas share in the annual rent, that is to say, Rs.  1,875 per  annum  and defendants 1 and 3 were liable  to  pay  the balance  rent;  (2)  as the lease deed granted  a  lease  of forest  rights,  the suit was governed by  Art.  2(b)(i)  of Schedule III of the Bihar Tenancy Act, 1885 and consequently the  suit  in respect of rent for 1356 and 1357  Faslis  was barred  by  limitation, and (3) in view of sec.  67  of  the Bihar Tenancy Act the plaintiffs could claim interest at the rate  of  61/4% per annum only. Accordingly the  High  Court allowed  the  appeal in part and’ passed  a  decree  against defendants 2 and 2(a) for 5 annas share of the rent for 1358 to  1360 Faslis and a separate decree against  defendants  1 and 3 for the balance rent for those years with interest  at 61/4  %  per annum.  The plaintiffs have filed  the  present appeal  after obtaining a certificate from the  High  Court. The appellants challenge the correctness of all the findings of the High Court. Clause 3 of the lease deed provided:                      "that the lessees shall  pay an  annual               Zama  of  Rs. 16,000 in respect of  the  thika               property  on 1st Kuar of every year.   If  for               any reason, the rent for two consecutive years               shall  fall  into  arrears in  that  case  the               lessors shall be competent to enter  into khas               possession   and  occupation  of   the   thika               property  and  to this the lessees shall’ have               no objection and in case of making default the               lessees  shall pay an interest at the rate  of               Re. 1 per cent till the date of payment.   The               lessors  either separately or  jointly   shall               realise  (the amount) to the extent  of  their               respective shares according to their choice by               instituting  in  court with  interest  thereon               mentioned   above   from   the   persons   and               properties of the lessees." At  the end of the lease it was stated that defendant 1  had twelve anna share in the lessees’ interest and his share  of the rent was Rs. 12000.  It was also stated that defendant 2 had  4 anna share in the lessees’ interest and his share  of the  rent was Rs.  4GO0. Clause 3 of the deed clearly  shows that the lessees were jointly liable to pay the annual  rent of  Rs. 16000.  The deed mentioned the share of each  lessee and  the  annual  rent for the purpose  of  indicating  what amount would be contributed by each of them towards the rent jointly payable by them.  The joint liability of the lessees is clearly indicated by the provision that entire lease 363 would  be terminable on default of payment of rent  for  two consecutive  years.  Having regard to sec. 43 of the  Indian Contract  Act,  1872  defendants 1 and 2  were  jointly  and severally  liable  to  pay the rent.  It  was  not  disputed before  the  High Court that the liability  of  defendant  3

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stood  on the same footing.  The High Court was in error  in holding that defendant 2 was liable to pay only 5 anna share in the rent. The High Court was right in allowing the defendant to  raise the point of limitation, though the plea was not  taken   in the  written statement.  Under s. 184 of the  Bihar  Tenancy Act  a  suit instituted after the expiry of  the  period  of limitation  is liable to be dismissed though limitation  has not  been pleaded  learned Counsel for the appellants  could not  tell us what further evidence his clients could  adduce on  this  point.  In the circumstances, the absence  of  the plea  of limitation in the written statement did  not  cause the appellants any prejudice. On  a  careful reading of the lease deed, we  are  satisfied that  it granted a lease in respect of forest  rights  only. It gave  the lessees the right to cut and appropriate  trees of certain types and the fruits and flowers of certain fruit bearing  trees.   The right to open roads and  to  construct buildings  were incidental to the right to enjoy the  forest produce.  The  suit is for recovery of rent  in  respect  of forest  produce and saving regard to sec. 193 of  the  Bihar Tenancy  Act  is governed by Art. 2(b)(i) of  the   Schedule III thereto.  This view is supported by the decisions of the Calcutta High Court in Abdulullah v. Asraf Ali(1) and  Bande Ali  Fakir  v.Amud  Sarkar(2).   The  special   period    of limitation  applies though the claim for arrears of rent  is rounded on a  registered instrument, (see Mackenzie v.  Haji Syed  Muhammad  Ali  Khan. (3)The High Court  was  right  in holding  that  the suit in respect of rent for  Fasli  years 1356 and 1357 was barred by limitation. Having  regard  to sec. 193 all the provisions  of  the  Act applied to a suit.  Section 67 (1 ) provides that arrears of rent  shall  bear simple interest at the rate of  61/4%  per annum.   The section overrides the  contractual  stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at  the rate  of 61/4% per annum only. In the result, the appeal  is allowed  in part and it is  declared that defendants  1,  2, 2(a)  and 3 are jointly and severally liable to pay  to  the plaintiffs Rs. 6000 per annum on account of  the plaintiffs’ share of rent for Fasli years 1358, 1359 and 1360 and simple interest thereon at the rate of 61/4% per annum upto date.We direct  that a decree be drawn up accordingly.  The   decree will carry future interest on the principal sum at the  rate of 6% (1) 7 C.L.J. 152.              (2) 19C.W.N. 415. (3) I.L.R.19 Cal. 1. 364 per  annum.   The  aforesaid  defendants  will  pay  to  the plaintiffs  proportionate  costs of the suit  in  the  Trial Court.  The parties will bear their own costs of the  appeal in  the High Court and in this Court.  This decree  will  be without  prejudice  to  the payments, if any,  made  by  the defendants to the plaintiffs after the institution the suit. Y.P.                                  Appeal partly allowed. 366