C BALAKRISHNAN NAMBIAR Vs. NARAYANI PILLAYATHIRI AMMA

JUDGEMENT

(1.) The point that arises for decision in this Second Appeal at the instance of the plaintiff in O.S. 912 of 1949 is a pure question of limitation.

(2.) The question is about the applicability or otherwise of Art.10 of the Indian Limitation Act. The further question is, if Art.10 applies, what is the starting point for the period of limitation prescribed in column 3 of Art.10. The Trial Court has accepted the plaintiffs contention and come to the conclusion that there is no bar of limitation for the plaintiffs action; whereas the appellate court, on appeal, has differed from the conclusions arrived at by the Trial Court. The learned Sub-Judge has come to the conclusion that the plaintiffs suit O.S. 912 of 1949 is barred by limitation under the latter part of column 3 of Art.10 of the Limitation Act, and as such has held that the plaintiffs suit for pre emption is barred.

(3.) There was also a connected suit, tried along with the present suit O.S. 912 of 1949 and it is not necessary for the purpose of this litigation to consider the said proceedings. The present suit O.S. 912 of 1949 was filed by the plaintiff to enforce the right of pre emption that he has got on the suit properties under the customary law of Malabar, as the ottidar thereof. There is no controversy that the plaintiff is the ottidar of the suit property and under the customary law obtaining in Malabar, he will be entitled to enforce a right of pre emption. If he is entitled to enforce a right of pre emption, even by customary law, as in this case, there is no dispute that Art.10, viz., the Article regarding enforcement of right of pre emption, will have to be ordinarily applied, unless the suit does not come within the scope of either part of column 3 of Art.10. The jenmi of the suit properties, subject of otti in favour of plaintiff, assigned the jenm rights under Ext. A3 on 1-11-1941 to one Kunhi Themana Pillayathiri Amma. The present suit was instituted to enforce the right of pre emption, only on 24-12-1949. According to the plaintiff, he was not aware of the rights conveyed by the jenmi and that he has got knowledge of the assignment in favour of the said Pillayathiri Amma, only when he got summons in the other connected suit. According to him, the date of knowledge is very material; and there was also a contention raised on his behalf that it is not Art.10 that applies to this case but it is only Art.120 that applies.