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1946 DIGILAW 120 (ALL)

Banshi v. B. Sobhnath Singh

1946-04-16

body1946
JUDGMENT Verma, J. - This is a defendants' appeal arising out of a suit for sale on foot of a deed of simple mortgage. The Munsif dismissed the suit on the ground that it was barred by time and did not try the remaining issues. On the plaintiff's appeal, the lower appellate Court differed from the Munsif on the question of limitation and remanded the case to the Court of the Munsif for the trial of the remaining issues. This appeal is directed against that order of remand. The facts relevant to the question that arises for consideration are these. The deed in suit was executed on 22-1-1929, by Tunni, the father of the present defendants, and by Banshi, defendant 1. Tunni died sometime later and the other three defendants were impleaded in the suit as his legal representatives. A period of 2 years was fixed in the deed for payment. Thus, the period prescribed in Art. 132, Limitation Act, had to be computed from 22-1-1931. The suit, therefore, would have been within time if it had been brought by 22-1-1943. It was, however, actually instituted on 20-5-1943. The plaintiff averred in the plaint that the suit was saved from limitation because the defendants were "agriculturists" within the meaning of that expression as given in S. 2 (2), Temporary Postponement of Execution of Decrees Act, (U.P. Act 10 [X] of 1937). What he apparently meant was that the defendants being such agriculturists, he was entitled under S. 5 of the Act, to exclude the period during which the Act remained in force. The ground on which the defendants were alleged to be "agriculturists" was not mentioned in the plaint. At the trial, however, the plaintiff alleged that the defendants belonged to one of the classes of persons mentioned in the Schedule attached to Act 10 [x] of 1937, namely, "tanners and leather workers". The defendants denied this allegation and alleged that none of them was a tanner or a leather worker. It was admitted by the defendants that they were ordinarily living outside the limits of a municipality, but they alleged that the the additional qualification required by the Act, namely, that of belonging to one of the classes of persons mentioned in the Schedule, was non-existent in their case. 2. It was admitted by the defendants that they were ordinarily living outside the limits of a municipality, but they alleged that the the additional qualification required by the Act, namely, that of belonging to one of the classes of persons mentioned in the Schedule, was non-existent in their case. 2. The Munsif held that there was no credible evidence to show that the defendants, or any one of them, belonged to the class alleged by the plaintiff and that there was reliable evidence which showed that two of the defendants were in the service of two the kedars in the city of Benares, another one was working as a weaver in the employment of a cloth manufacturer in Mohalla Alipur in the city of Benares and the fourth one was working in a mill situated at Sheopur in the district of Benares. The learned Judge below, however, allowed the plaintiff's appeal on the ground that as the defendants were chamars by caste, they must be taken to belong to the class of tanners and leather workers. Having heard learned counsel for the parties, we have come to the conclusion that the lower appellate Court's decision cannot be sustained. The learned Judge began his judgment with the following sentence; "The defendants are Chamars by caste and the caste, as a whole, has been included in the Schedule for purposes of S. 2, sub-cl. 2 (g) of Act 10 [s] of 1937." It is sufficient to say that the learned Judge was obviously wrong. The Schedule does not deal with castes. It deals with classes, in other words, with callings or occupations. The mere fact that a person is a Chamar by caste can be no justification for holding that he must necessarily be a tanner or a leather worker. It is obvious, in our opinion, that the learned Judge allowed his mind to be influenced by a presumption for which there is no justification. A man, who is a Chamar by caste, may or may not be a tanner or a leather worker. It was, therefore, the duty of the plaintiff to adduce credible evidence to establish his allegation that the defendants were tanners and leather workers. A man, who is a Chamar by caste, may or may not be a tanner or a leather worker. It was, therefore, the duty of the plaintiff to adduce credible evidence to establish his allegation that the defendants were tanners and leather workers. At the request of the plaintiff-respondent's counsel, we have gone through the evidence for ourselves, and we do not find it possible to say there was any reliable evidence adduced by the plaintiff which could justify the Court in holding that he had proved his allegation. The plaintiff's evidence consisted only of his own deposition and, having read it, we are not surprised that the learned, Munsif did not find it possible to believe his allegation. The learned judge below does not deal with the evidence at all. 3. The judgment of the Court below shows that the learned Judge was also of the opinion that residence outside the limits of a municipality was by itself sufficient to bring a person within the Schedule. That is clearly incorrect. In addition to that a person must also belong to one of the classes mentioned in the Schedule. Our conclusion, therefore, is that the decision at which the Munsif had arrived was correct. The appeal is accordingly allowed, the order passed by the lower appellate Court is set aside and the decree of the trial Court, dismissing the suit, is restored. The appellants shall have their costs throughout.