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Bombay High Court
Dulabh Vahuji vs Bansidhar Rai And Ors. on 31 July, 1884
Equivalent citations: (1885) ILR 9 Bom 111
Author: C Sargent
Bench: C Sargent, Kemball


JUDGMENT

Charles Sargent, C.J.

1. The plaintiffs seek by this action to recover arrears of share in a deshpande vatan for the years 1870 to 1875, which, it was alleged, had been received by the defendant himself, a co-sharer in the vatan. It is not in dispute that since 24th August 1863, on which date plaintiffs obtained a decree against the defendant, declaring their light to the share of one Ganga Vahuji in the vatan, the plaintiffs have received no payment on account of their share. The Subordinate Judge held, on the authority of Madvala v. Bhagvdnta 9 Bom. H.C. Rep. 260 that as there had been no payment on account of the plaintiff’s share, nor any recognition of their title within twelve years before the institution of this suit, the cause of action to establish title was barred, and, therefore, also the claim to all arrears. The District Judge, however, was of opinion, on the authority of Chhaganlal v. Bapubhai, I.L.R. 5 Bom. 68 that as the plaintiffs had obtained a declaratory decree in 1863 against the defendant establishing their right to share in the vatan it was not necessary for them to establish their title again and awarded them six years’ arrears, as prayed for.

2. In Raiji Manor v. Desai Kallianrai 6 Bom. H.C. Rep. 56 the ruling in which was followed in Madvala v. Bhagvanta 9 Bom. H.C. Rep. 260 it was held that the cause of action to establish title and the cause of action to recover arrears in the case of. a periodical payment, such as a hak or service vatan, were not distinct and independent, and that when the former was barred, the light to arrears was also barred. In the last two cases it is to be remarked that the action was against the person or persons by whom the hak or vatan was payable But in Chhaganlal v. Bdpubhai I.L.R. 5 Bom. 68 the action was, as here, by one sharer in a vatan, against a co-sharer who had received moneys on account of the vatan, and it was held that the ruling in Raiji Manor v. Desdi Kallidnrai 6 Bom. H.C. Rep. 56 was not applicable in that particular case, as the plaintiff had already obtained a declaratory decree establishing his title, and that it was no longer necessary for him to establish his periodically recurring right against any person who was bound by that decree;” and although the plaintiff had not received any payment for thirteen years, the Court awarded him the arrears for the last six years. We agree in this conclusion, except as to the amount of arrears. The Court has given six years’ arrears Instead of three, following the decision in Chhaganlal v. Bapubhdi I.L.R. 5 Bom. 68 which, however, was admitted by Melville, J., in Hormukhgauri v. Harisukhprasad I.L.R. 7 Bom. 191 to be wrong in that respect. We must, therefore, vary the decree of the District Judge by awarding the plaintiffs Rs. 347-6-3 instead of Rs. 694-12-6.

3. Parties to pay their own costs of second appeal.


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