JUDGMENT

Sulaiman, C.J. - This is an appeal by the defendants in a suit brought for recovery of parjot, i.e., ground rent in respect of the site of a house occupied by the defendants. Admittedly, the plaintiffs are the landlords, and in the plaint they alleged that there was a liability to pay parjot at the rate of ten annas a year out of which six annas a year was leviable on the plot in question on the basis of an agreement to pay such ground rent. It was alleged that the plaintiffs are entitled to get Re. 1-2-0 on account of the ground rent for the past three years which the defendants have not paid. The relief claimed was for a decree awarding Re. 1-2-0 on account of arrears of ground rent for the past three years with interest and costs. The defendants, while admitting that the plaintiffs were the landlords of the land and admitting that the defendants were occupying the site as ryots or tenants, denied that there was any liability to pay. In para. 4 of the written statement it was specifically pleaded that the defendants and their ancestors had all along remained in possession of the site; the defendants denied the right of the plaintiffs to realise any ground rent in respect of the plots in question within the knowledge and information of the plaintiffs, etc., and also alleged that they had never in fact paid any ground rent.

2. Both the Courts below dismissed the claim. The findings of the lower appellate Court were that the plaintiffs, through their agents, had been making demands but that the defendants were always refusing payment. (Indeed they denied the plaintiffs' right to claim parjot.) Such demands and refusals have been going on for 15 or 16 years prior to the suit. In particular a suit was brought by the plaintiffs' predecessor in 1901 for recovery of parjot and the right to recover such parjot was denied by the predecessors of the defendants in their written statement, but the suit was allowed to be dismissed for default of appearance.

3. On appeal a learned Judge of this Court has decreed the appeal and remanded the suit. He has conceded that the case in Mohammad Hussain v. Mohammadi Bibi AIR 1915 All 67 is in favour of the defendants, but has held that that case is no authority because it was decided without reference to an earlier case in Lachmi Narain v. Turab-un-innsa (1912) 34 All. 246 which supports the plaintiffs. In the former case in Hussain v. Mohammadi Bibi AIR 1915 All 67, a suit had been brought by the landlord with a prayer to assess rent on the land and for recovery of rent from the defendant. There was no express relief for a declaration of title, the prayer being one for assessment of rent. A learned single Judge of this Court came to the conclusion that the prayer as framed was in substance a prayer to establish the plaintiff's right to obtain rent at a particular rate and that accordingly the suit was governed by Article 131 and Article 120 was inapplicable.

4. The case was remanded for enquiry as to whether there had been a refusal of enjoyment of the right by the defendants at some time prior to 12 years preceding the date of the suit. On the other hand, in the case of Lachmi Narain there was a liability to pay certain annuities under a document, and these amounts were paid upto 1898 or 1899, when the defendants' predecessor stopped payment. The suit for recovery of arrears was brought in the year 1909, within 12 years of the last payment. Obviously therefore no question of 4here having been a refusal of the enjoyment of the right at a time 12 years prior to the institution of the suit at all arose. The learned Judges held that Article 131 could not apply to the claim for recovery of arrears, as that was confined to a declaration of title. They agreed with certain observations made in a Punjab case and deed not agree with the view expressed in two Madras cases. As the question whether the plaintiff was entitled as heir to recover the amount was also disputed the case was remanded for trial.