Hussain Batcha Sahib vs The Secretary of State for India in Council and Another

Wadsworth, J.—This appeal raises a question of limitation under Article 131 of the Limitation Act. The plaintiff filed a suit for a declaration

that he is the duly appointed Mutavalli, Yeomiadhar and Katheeb of a mosque and that as he has been discharging the duties, he or his successors

alone are solely entitled to receive the yeomiah allowance of Rs. 88-8-0 per annum from the first defendant who is the Secretary of State, for an

order directing the first defendant to register the plaintiff as the Yeomiadhar entitled to receive the yeomiah allowance and pay the plaintiff such

allowance and for an order restraining the first defendant by an injunction from paying the allowance to anyone else other than the plaintiff or his

successors. The office by virtue of which the plaintiff claims the yeomiah allowance was held by the plaintiff''s maternal uncle who died in 1918. In

1919 the second defendant, widow of the last holder was registered in the Revenue Department''s records. In 1921 the plaintiff brought a suit

against the registered holder, the second defendant here, claiming a declaration that he was the duly appointed mutavalli, katheeb, etc., of the

mosque and entitled to possession of the properties of the mosque. It does not appear in the former suit that any relief was specifically asked for

with reference to the yeomiah allowance, though the fact that such allowance was payable is referred to in the judgment. That suit resulted in a

decree in favour of the plaintiff whose appointment by the Mohammedan Religious Endowments Committee was held to prevail over the

registration of the second defendant by the Revenue Department. On the strength of this decision the plaintiff applied to the Revenue Department

for his recognition and he was told on 12th July, 1923, that this decree did not bind the Government and did not give the plaintiff a right to receive

the allowance in question. The suit was filed on 14th December, 1931, and it is claimed to be within time as being a suit to establish a periodically

recurring right and as having been brought within six years of the date on which the Board of Revenue finally rejected his application for

registration. The Courts below have held that the suit is barred by limitation on the authority of the decision of a Bench of this Court in Gulam

Ghouse Khan Sahib Vs. Jannia alias Gulam Ghouse Khan, , which held that Article 131 did not apply to a claim by a person alleged to be a

mutavalli of a mosque against a rival claimant for a Meclaration of a right to a yeomiah allowance. The learned Judges pointed out that it was not

really a suit to establish a periodically recurring right but a suit to establish a perpetual right to which periodical payments were attached. Now this

decision has been considered by subsequent Benches in the light of a Privy Council decision reported at Secretary of State v. Parashram

Madhavrao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : ILR 58 Bom. 306 , in which it was held that a suit by a jagirdar against Government to

establish a hereditary right to an annual payment of a percentage of actual revenue rather than of a fixed cash sum was one to which Article 131

applied, the right to sue accruing with the refusal of the right. In Cherukur Krishniah Vs. Sowcar Lodd Govinda Doss Krishna Doss, ,

Varadachariar and Pandrang Row, JJ., considered Gulam Ghouse Khan Sahib Vs. Jannia alias Gulam Ghouse Khan, , in the light of the Privy

Council ruling referred to. They had to deal with a claim to recover mera out of the village income collected by a zamindar. They distinguish the

decision in Gulam Ghouse Khan Sahib Vs. Jannia alias Gulam Ghouse Khan, , on the ground that that was a suit between rival claimants to a right

and not a suit to establish a right as against the person bound to pay, the question in the earlier decision being not so much one of limitation for

recovery of money as of limitation for establishing a right to an office. It is contended, applying this distinction to the present case, that we are now

dealing with a suit against the Government to establish a right to receive emoluments; but I do not think that this is the correct way of looking at the

case. It is true that in Gulam Ghouse Khan Sahib Vs. Jannia alias Gulam Ghouse Khan, , the Government was not a party whereas the

Government is impleaded in the present case. But in the present case there is no prayer for the recovery of specified sums from the Government

and all that the plaintiff asks is to make binding upon the Government a decision as to the rival claims of himself and the second defendant to an

office to which certain emoluments payable periodically by the Government are attached. To my mind the distinction made by Varadachariar, J., in

Cherukur Krishniah Vs. Sowcar Lodd Govinda Doss Krishna Doss, , classes the present case in the same category with the decision in Gulam

Ghouse Khan Sahib Vs. Jannia alias Gulam Ghouse Khan, . The essential question in the present case is not the liability of the Government to

make a payment under a periodically recurring right, but the question whether A or B is the person entitled to receive a payment admittedly due to

the office holder by virtue of his holding a particular office. It is really the establishment of the title of the plaintiff to the office to which a

remuneration is attached and not the establishment of the liability of the Government to make the recurring payment, which is the essential claim in

the suit.

It is argued that even if Article 120 applies, the plaintiff has six years from the final refusal to recognise his rights. That argument is not tenable,

for Article 120 gives a period of six years from the date when the right to sue accrues and certainly in the present case the right of the plaintiff to

sue accrued when the Government recognised the second defendant as the holder of the office entitled to receive the emoluments and not when the

plaintiff''s final appeal to the Board of Revenue was rejected. In the result therefore I agree with the decision of the Courts below that the suit is

barred by limitation and dismiss this appeal with costs - two sets.

Leave to appeal is granted.