MUNSHI ALAUDDIN AHAMMED CHOUDHURY Vs. TOMIZUDDIN AHAMMED

JUDGEMENT

(1.) The suit out of which this appeal arises has been dismissed by both the Courts below as barred by limitation under Art. 2 of Sch. 3, Ben. Ten. Act. The plaintiffs have appealed to this Court, and contend that the suit is governed by Art. 116, Lim. Act. In one case the limitation would be three years, and in the other six.

(2.) The suit is one for recovery of rent, based on a registered ijara lease for five years from Baisakh 1332 to Chaitra 1336 B.S., reserving a yearly rental of Rs. 300 payable in four equal quarterly instalments, the last instalment being payable on the 5 Chaitra. The claim relates to 3 years, from 1334 to 1336 B.S., i.e. up to 13 April 1930, and as the suit was filed on 5th February 1934, it would obviously be out of time if Sch. 3, Ben. Ten. Act, be held to apply.

(3.) At one stage the plaintiff's argument was that the instrument by which the ijara was created was a contract of service, and not a lease, and that the payment stipulated therein was wages for service rendered, and not rent. This argument was overruled by the learned Subordinate Judge in the lower Appellate Court, and was not further pressed before us. It may be taken, therefore, for present purposes that the suit is one for recovery of an arrear of rent, and it may be further assumed, as in fact was not disputed, that the parties stood in the relation of landlord and tenant. This being so, the question is whether it would be governed by Sch. 3, Ben, Ten. Act.