KAMLAPRASAD KESHAOPRASAD AWASTHI AND ANOTHER Vs. BAYAJABAI SITARAM AND OTHERS

JUDGEMENT

(1.) This appeal raises a question of applicability of Art. 139 of the Indian Limitation Act, 1908 corresponding to Art. 67 of the present Act. The two appellants are brothers. Their father Keshaoprasad died in the year 1935. Sometime before his death, he appears to have created a lease in favour of original first respondent-defendant No. 1. He is dead and his heirs have been brought on record. The second respondent is the mother of the present appellants and has been joined as the party defendant because at the time of the transaction and after the death of Keshaoprasad the appellants were minors. Sheoranibai, the second respondent, was acting as their guardian.

(2.) There is a dispute between the parties whether the original lease was in respect of the land as well as the house thereon. According to the appellants-plaintiffs, the plot as well as the house situated thereon came to their father as an ancestral property. Since he died prior to 14th April 1937 his widow, second respondent, had no share in the suit property. The tenancy with the original first defendant commenced from 20th of the Calendar month. It is, however stated that some time in 1951 it was regulated according to the English Calendar month. The plaintiffs averred that originally the rent was agreed upon at Rs. 7 per month. The same was increased to Rs. 9 and by about the year 1939 it was increased to Rs. 10. However the Munims engaged for collection of rent passed receipts of Rs. 2 per month only, though more amount recovered was duly entered in the account books. The contesting respondent No. 1 put forward the case that on the plot of land he had taken on lease, immediately a house was constructed by his own money. He also put forward a simultaneous agreement to pay Rs. 850 in addition to the rent of Rs. 2 per month so that on such payment being made the entire property together with the house and the land was to remain in his possession as owner. He has contended that on payment of Rs. 135 in July 1946, the payment due was made over and as such the plaintiffs did not have any interest in the suit property.

(3.) On 28-11-1947 Sheoranibai as the guardian of the present appellants filed an application under clause 13 of the C.P. and Berar Letting of Houses and Rent Control Order in the Court of the Rent Controller, Nagpur for permission to issue a notice to quit. This was because the contesting respondent was alleged to be in arrears of rent for more than 3 months. It seems the Rent Controller happened to grant such a permission, but in appeal the Deputy Collector reversed that order holding that the rent due was Rs. 2 per month and that there were no arrears. Subsequently a civil suit bearing No. 383 of 1951 was filed in the Court of the Second Civil Judge, Class II, Nagpur empowered under section 19 of the C.P. Courts Act. In that suit the guardian of the present appellants bad claimed rent from 20-6-1946 to 20-1-1950. The claim was denied. The contesting defendant had put forward his case regarding only the land having been let out for Rs. 2 per month and he himself putting the construction on it. He also put forward a case of Rs. 850 to be paid to become the owner of the land and maintained that such an amount was received by Keshao-prasad and after his death by the appellants.