DAU DAYAL Vs. BRIJ MOHAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of arrears of rent.

(2.) On 27-9-1932, the defendant usufructuarily mortgaged a house to the plaintiffs respondents. On the same date the defendant executed a qabuliat whereby he promised to pay a sum of Rs. is per month as rent of the house to the mortgagees for a period of 5 years. No lease, as provided under Section 107, T P. Act, signed both by the lessor and the lessee, was executed. The qabuliat was, however, registered- Five years elapsed on 27-9-1937. The defendant did nob vacate the premises nor entered into a fresh agreement. The plaintiffs-respondents then served a notice upon the defendant-appellant to vacate the house. As the defendant did not vacate the house a suit for the ejectment of the defendant was filed on 29 1-1938. In this suit no claim for arrears of rent was included. Then while the ejectment suit was pending, on 19-4-1941 the suit which has given rise to the present appeal, was filed for recovery of rent for the period 27-8.35 to 26-12-38.

(3.) The defence to the suit was that it was barred by Order. 2 Rule 2 Civil P C., and that the suit for rent for the period prior to 19-4-1938 was bar. red by limitation on the ground that the period of limitation was 3 years. The trial Court held that the suit for rent for the period 27-3-1935 to 28-1 1938 was barred by Order. 2, Rule 2, and the suit for period 28-1-1938 to 19-4-1938 was barred by Article 110, Limitation Act, as being beyond 3 years of the date of the suit. It, therefore, decreed the suit for the period 28-4-38 up to 26-12-38. The defendant submitted to the decree but the plaintiffs appealed.