Bachawat, J. - (1.) The plaintiffs, defendants 5 to 7 and the ancestor of defendants 8 to 13 were the sixteen anna proprietors of certain villages in district Shahbad By a registered deed dated October 3, 1944 they leased the forest rights in the villages to the defendants 1 and 2 for a period of 9 years ending Bhado 30, 1360 Fasli corresponding to September 2, 1953 at an annual rent of Rs. 16000/-. The plaintiffs had 6 annas share in the proprietary rights in the villages and Rs. 6000/- was fixed as their share of the annual rent. The defendant No. 3 was a transferee of a portion of lessees' interest from defendant 1. On September 3, 1954 the plaintiff instituted a suit claiming a decree against defendants 1 and 2 for Rs. 36,405/- on account of their share of the rent for1356 to 1360 Faslis and interest thereon at 1 per cent per annum. During the pendency of the suit, defendant 2 died and his heirs were substituted as defendants 2 and 2 (a). The Trial Court decreed the suit on contest against defendants 2 and 2 (a) and ex parte against defendants 1 and 3 with future interest and costs. On appeal, the High Court held that (1) as defendant 2 had only 4 anna share in the lessees' interest as mentioned in the lease deed and as he had acquired another one anna share in the lessees' interest subsequently, defendants 2 and 2 (a) were liable to pay only 5 annas share in the annual rent, that is to say, Rs. 1875/- per annum and defendants 1 and 3 were liable to pay the balance rent; (2) that as the lease deed granted a lease of forest rights, the suit was governed by Article 2 (b) (i) of Schedule III of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation, and (3) in view of Section 67 of the Bihar Tenancy Act the plaintiffs could claim interest at the rate of 6 1/4 per cent per annum only. Accordingly the High Court allowed the appeal in part and passed a decree against defendants 2 and 2 (a) for 5 annas share of the rent for 1358 to 1360 Faslis and a separate decree against defendants 1 and 3 for the balance rent for those years with interest at 6 1/4 per cent per annum. The plaintiffs have filed the present appeal after obtaining a certificate from the High Court. The appellants challenge the correctness of all the findings of the High Court.
(2.) Clause 3 of the lease deed provided: " that the lessees shall pay an annual Zama of Rs. 16,000/- in respect of the thika property on 1st Kuar of every year. If for any reason, the rent for two consecutive years shall fall into arrears, in that case the lessors shall be competent to enter khas possession and occupation of the thika property and to this the lessors ( ) shall have no objection and in case of making default the lessees shall pay an interest at the rate of Re. 1/- per cent till the date of payment. The lessors either separately or jointly shall realise (the amount) to the extent of their respective shares according to their choice by instituting (sic) in Court with interest thereon mentioned above from the persons and properties of the lessees." At the end of the lease it was stated that defendant 1 had twelve anna share in the lessees' interest and his share of the rent was Rs. 12,000/-. It was also stated that defendant 2 had 4 anna share in the lessees' interest and his share of the rent was Rs. 4,000/-. Clause 3 of the deed clearly shows that the lessees were jointly liable to pay the annual rent of Rs. 16,000/-. The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. The joint liability of the lessees is clearly indicated by the provision that the entire lease would be terminable on default of payment of rent for two consecutive years. Having regard to Section 43 of the Indian Contract' Act, 1872 defendants 1 and 2 were jointly and severally liable to pay the rent. It was not disputed before the High Court that the liability of defendant 3 stood on the same footing. The High Court was in error in holding that defendant 2 was liable to pay only 5 anna share in the rent.
(3.) The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded. Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice.;