Judgement

Appeal from a judgment and decree of the High Court (May 29, 1912) affirming, with a modification, a decree of the Subordinate Judge of Burdwan.

By a registered lease dated May 24, 1901, the appellants father, Cooverji Bhoja, acquired certain mining rights from the then she-baits of an idol on the terms that the lessee should pay certain commission or royalties for all coal raised by him, and that if no coal was cut he should pay a minimum royalty of Rs.4000 per annum in quarterly instalments, with interest in case of default.

A sum of Rs.5000 was paid upon execution of the lease, this sum to be repaid by setting off Rs. 1000 yearly against the royalties for the first five years. The material part of the lease is set out in the judgment of their Lordships.

On March 5, 1908, the lessee not having cut any coal, three of the then four shebaits instituted a suit against the lessee to recover the minimum royalties provided by the lease, with interest, after crediting the Rs.5000 above referred to. The fourth shebait, Debanand, being unwilling to sue, was joined as a defendant.

The principal defendant (represented in the appeal by the appellant) by his written statement alleged that he had paid to Debanand and to one of the plaintiffs jointly the whole amount due and that they had given him a receipt on behalf of the lessors. The Indian Limitation Act was not pleaded. Debanand by his written statement admitted that he had received Rs.4000 in respect of his share of the royalties, but denied that any further payment had been made.

The Subordinate Judge found that the alleged receipt was a forgery and made a decree in favour of the three plaintiffs for three fourths of the royalties and interest payable under the lease, and in favour of the defendant Debanand for one fourth of that amount, less the Rs.4000 which he had received.

The lessee died before the hearing, and the present appellant, his son, who had been substituted for him on the record, appealed to the High Court. Debanand did not appeal. The High Court (Chitty and Teunion JJ.) agreed with the finding that the alleged receipt was a forgery. The learned judges stated that an issue had been raised before them as to whether the claim was not barred by the Indian Limitation Act. Upon that question they held that they were bound by previous decisions of the Court to hold that art. 116 of the Limitation Act, 1877, Sched. II., and not art. 110, was applicable, and that the period was therefore six and not three years. They accordingly dismissed the appeal, but directed that the form of the decree should be altered into one in favour of the plaintiffs for the whole amount found to be due.

1916. Nov. 6, 7. De Gruyther, K.C., and Dunne, for the appellant. The plaintiffs claim was for " arrears of rent" within the meaning of art. 110, and the period of limitation was consequently only three years. The High Court was bound by its previous decision in Umesh Chunder Mundul v. Adarmoni Dasi. (( 1887) I. L. R. 15 Calc. 221.) That case and the authorities there followed were wrongly decided. The Allahabad High Court rightly held in Ram Narain v. Kalta Singh

(I. L. R. 26 Allah. 138.) that a claim for rent due under a registered lease came under art. 110 and not under art. 116. The cause of action being one specifically provided for by art. 110, resort should not be had to a more general article. The word " compensation " in art. 116 indicate that the article applies only to a claim for unliquidated damages. [Reference was also made to Vythilinga Pillai v. Thetchanamurthi Pillai. (( 1880) I. L. R. 3 Madr. 76.)] In any case the decree made by the trial judge in favour of Debanand was irregular. He did not appeal, and the High Court had no jurisdiction to amend the decree in his favour.

Sir W. Garth, for the respondents (Debanand excepted). There was no plea of limitation. The claim being for royalties and not for rent, the question of limitation did not arise upon the face of the plai