Judgment

HEGDE, J.:- This appeal by certificate is brought by the State of Rajasthan. It arises from a suit instituted by the District Board, Sikar, In the suit the District Board, Sikar, a statutory body, which has jurisdiction over the whole of Sikar District except the municipal towns in it sought to recover from the respondent a sum of Rs. 46,647/2/3 with costs and future interest. The case for the plaintiff was that it had the right to levy and realise certain cesses as well as contributions from the Thikanedars or Atiyadars in accordance with law it had imposed certain cesses under Section 31 of the Jaipur District Boards Act, 1947 and it was entitled to collect the said cess as well as the contribution from the respondent who was the Thikanedar of Sikar, for the years 1951-52, 1952-53 and from April 1, 1954 to June 16, 1954, the date on which all zamindaries were abolished. The further case of the plaintiff was that the account of the cesses and the contribution due from the respondent was taken on September 15, 1953 and a detailed statement of account was sent to the respondent demanding from him a sum of Rs. 55,791/1/- as arrears due from him. In response to the demand made by the District Board, the respondent paid only a sum of Rs, 18,291/1/0 and declined to pay the balance inspite of repeated demands and hence the suit had to be brought.

2. The respondent resisted the plaintiffs suit on various grounds. At present we are concerned only with two of the pleas taken by him, viz. (1) that the suit is not maintainable and (2) that the claim made in the plaint is barred by limitation. During the pendency of the suit the plaintiff District Board was abolished and its functions were taken over by the Government of Rajasthan. But this change-over does not change the nature of the suit in considering the question whether the suit as brought was maintainable. We have merely to see whether the District Board of Sikar was competent to bring the suit. The Rajasthan Government cannot and did not claim any right more than that possessed by the District Board, Sikar as the suit is continued by the government as the successor of the former District Board.

3. The trial court partly decreed the plaintiff s suit. It held that though the District Board was not entitled to claim the contribution from the respondent, it had the right to claim the cesses collected by the respondent from sub-grantees and tenants. In appeal the High Court dismissed the entire suit holding that the claim was barred by limitation as it was governed by Art. 62 of the Limitation Act, 1908. The High Court while being of opinion that the District Board had no right to maintain the suit, yet did not accept the plea of the respondent that the suit was not maintainable on the ground that the said plea had not been taken by the respondent in his written statement.

4. As we are of opinion that the suit was not maintainable we have not thought it necessary to go into the question of limitation. In our opinion, the High Court was wrong in holding that the respondent had not pleaded that the suit was not maintainable. In paragraph 1 of the written statement of the respondent, it was specifically pleaded that:

". . .that the right of the District Board to levy and realise cesses and contribution from the Government and the Thikanedars or Atiyadars is not admitted and is categorically denied."

5. This is a specific plea. On the basis of this plea as well as some other pleas, the trial court had framed issue No. 1 which reads:

"Whether a sum of Rs. 38075/10 /3 is due from the defendant to the plaintiff on account of cess and contribution for the years 1951-52, 1952-53 and for the period from 1-4-54 to 15-6-1954?"

6. Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable,