Decided on June 29,1960

KALIA Appellant
TH HARISINGH Respondents


- (1.)FACTS which have given rise to this second appeal by the defendant and cross-objections by the plaintiff against a decree of the Additional Commissioner, Jaipur dated 17. 12. 59 may in brief be stated as below :
(2.)THAKUR Harising, the respondent filed a suit in the court of Assistant Collector Jhun-jhunu for recovery of Rs. 258/3/- as arrears of rent for Smt. 2010 to 2012 with interest amounting to Rs. 61/14/- at the rate of one percent per annum against the defendant-appellant as a tenant of the suit land which the plaintiff-respondent held as a mortgagee-landholder. The defendant denied his liability to pay the rent on the ground that he was a tenant of the Jagirdar of the Thikana Dabri whom he paid the rent on the due dates. The fact that the suit land was mortgaged by Thikana Dabri to the respondent and that he was entitled to receive rent as a mortgagee was also denied. The main issue framed by the trial court was whether the defendant-appellant was a tenant of the plaintiff-respondent and whether he was entitled to receive the arrears of rent as claimed in the suit. After recording the evidence of the parties the trial court held that the suit land which originally belonged to Thikana Dabri had been mortgaged to the respondent and that he was entitled to recover rent for the disputed period from the appellant at the stipulated rate of rent along with interest. The suit was in the result decreed for Rs. 320/1/- as claimed by the plaintiff-respondent. In appeal the lower court accepted this finding of the trial court but disallowed the amount of interest on the ground that there was no contract express or implied to that effect. The suit was in appeal, therefore decreed for Rs. 251/3/- only. The respondent being aggrieved from this decision has filed the present appeal and the plaintiff has filed cross objections.
One of the contentions of the learned counsel for the appellant is that his client had paid the rent to the Jagirdars of Thikana Dabri for the disputed period whom he in good faith believed to be entitled to receive such rent. It was pointed out that this point had been specifically stated in para 1 of the additional pleas of the written statement filed by the appellant in the trial court on 20. 5. 57 and that it was pressed before the trial court that without impleading the Jagirdars of Thikana Dabri who were a necessary party in the suit, the trial court could not proceed with its trial as provided in Sec. 210 of the Rajasthan Tenancy Act. The argument in essence canvassed before us was that the provisions of sec. 210 of the Act being mandatory the trial court acted illegally in ignoring this express provision of law and therefore its failure to make the third person, namely, Thikana Dabri a party to the suit vitiated the whole trial. Both the trial court as well as the lower appellate court has examined this argument. By his order dated 26. 8. 57 the trial court observed that the defendant could not satisfy him by any prima facie evidence that he in good faith believed the Jagirdars of Thikana Dabri to be entitled to receive such rent and therefore this plea was rejected. In appeal the learned Additional Commissioner also examined the same question and held that it was all due to the mischief of Thikana Dabri that the defendant denied his liability for the payment of rent to the plaintiff. It also observed that the question of good faith did not arise as there was no evidence whatsoever for the actual payment of money to the Thakur of Dabri, for were it so the defendant who deposed that the had obtained rent receipts from the said Thikana would have produced the same to prove that he in good faith believed the Thikana entitled to receive such rent. We have also looked into the provisions of sec. 210 of the Act. One of the essential conditions to attract the application of this section is that the tenant must plead that he in good faith believed a third person to be entitled to receive such rent and that such rent must have also been paid to that third person for the period in respect of which the suit was instituted. Both the courts below applied their mind to this plea raised by the appellant and found it without any substance. There is nothing on record nor any additional reasoning pressed in the arguments before us which could justify a different view in the matter. It was however suggested that Phoolsingh's statement recorded in the trial court as a witness of the appellant if correctly appreciated would have satisfied the lower court about the correctness of the appellant's contention about payment of the rent to him as a Jagirdar of the Thikana whom the appellant in good faith believed to be entitled to receive the rent. We have ourselves looked into this statement of Phoolsingh D. W. 3. He stated that the Thikana Dabri had mortgaged this land in St. 1986 to the respondent for a period of about 11 years which expired in St. 2007 during which period the respondent used to recover rent from the appellant and that from St. 2008 onwards the Thikana started realising the rent at settlement rates. He also stated that printed rent receipts had been given to the appellant for the disputed period. Unfortunately however neither counter-foils of the printed receipts nor the original receipts were produced before the lower courts and this statement of Phoolsingh D. W. 3 therefore was correctly held by the lower appellate court as a false story concocted by the appellant with the help of this witness simply to defeat the cause of the respondent. As we read and re-read the statement of this witness, we find that it stinks distinct and can not be depended upon at all. The appellant had been admittedly paying rent of this land for the period prior to St. 2008 to 2010 to the plaintiff and a payment of the same to a third person, namely, Thikana Dabri for the disputed period could not be in good faith. The term 'good faith' of course has not been defined in the Rajasthan Tenancy Act. But according to the meaning assigned to it in section 32 (32) of the Rajasthan General Clauses Act 1955 "a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not" Facts of the case as put up to us clearly show that the appellant may have paid rent for the disputed years to Thikana Dabri, but it can not be said that he did so honestly. In this view we rule out the contention of the learned counsel for the appellant that the present proceedings because of non-compliance of the provisions of sec. 210 of the Act stand vitiated. A feable attempt was also made by the learned counsel for the appellant to show that the claim was time barred. It was urged that the suit was instituted on 10. 12. 56 and the claim for St. 2010 was atleast time barred. This contention was never raised either in the trial court or in the lower appellate court or in the memo of appeal filed before us. It is in our opinion not a pure question of law but an issue of fact and if raised at the proper time could have been decided by the lower courts on the basis of the evidence before them or if necessary by taking fresh evidence. As observed in A. I. R. 1949 East Punjab 283 a plea of limitation where it is not a pure question of law will not be permitted to be argued in an appeal if it was not raised in the trial court and it has not been set up in the grounds of appeal. As already stated above neither in the plaint nor in the memo of appeal before the Additional Commissioner nor in the second appeal before us this plea of limitation was ever stated by the appellant. In the circumstances we reject this plea to be raised now for the first time during the course of the arguments.

Coming to the facts of the case both the courts below have come to a concurrent finding against the defendant to the effect that he is liable to pay arrears of rent amounting to Rs. 258/3/- to the appellant. This finding of fact arrived at by the lower courts on the basis of the legal evidence before them cannot be a ground for interference in second appeal. It is more or less binding on the second appellate court and accordingly we accept it as conclusive against the defendant-appellant.

As regards cross objections the same were not seriously pressed by the counsel for the respondent and since the lower appellate court in its discretion disallowed interest, we in the circumstances hardly find any grounds to take a different view in the matter. In the result, both the appeal and the cross objections shall stand dismissed with costs and the decree given by the lower appellate court shall stand confirmed. .


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