S RICHARD JAISON Vs. PADMANABHAN NADAR PARAMU NADAR

JUDGEMENT

(1.) Plaintiff is the Appellant. The suit is for setting aside a claim order and for consequential reliefs. The plaint property belonged to the father of the plaintiff. The plaintiff got a gift of the property from his father under a gift deed dated 28.5.1107. According to the plaintiff he was in independent possession of the property from the date of the gift deed. The defendant obtained a decree against the plaintiffs father in O.S. No. 61 of 1100 of the Trivandrum District Court and in execution of that decree, attached the property. The plaintiff preferred a claim to the attachment on 18.10.1112. The claim was disallowed by the execution court by its order dated 5.7.1113. Ext. D is the copy of the order. A Revision Petition filed by the plaintiff before the Travancore High Court was dismissed on 6.11.1114. Within one year the plaintiff instituted a suit as O.S. No. 101 of 1115 of the Trivandrum District Court for setting aside the claim order and for a declaration that the property attached belonged to him. The suit property is Kandukrishi land and under S.8 of the Travancore Code of Civil Procedure 1100 sanction of Government was necessary for instituting a suit relating to Kandukrishi lands. Since sanction of Government was not produced by the plaintiff, the suit was dismissed; but on the application of the plaintiff it was subsequently restored to file. Thereafter the plaintiff applied for permission to withdraw the suit with liberty to institute a fresh suit. The permission was granted by the order, Ext. E, dated 28.4.1119. During the pendency of the suit and subsequent to the withdrawal of the same the plaintiff tried to obtain the sanction of Government, but did not succeed. As no sanction of Government is necessary under the Indian Code of Civil Procedure to institute suits relating to Kandukrishi lands the plaintiff instituted the present suit without the sanction on 11.10.1951.

(2.) The defendant contended as follows:- The suit is barred by limitation having been brought more than a year after the final disposal of the claim petition by the High Court. The suit is barred by res judicata by reason of the decision in O.S. No. 101 of 1115. The gift deed in favour of the plaintiff was a sham transaction executed fraudulently for the purpose of defeating the defendant. The plaintiff had no possession of the property at any time. The plaintiffs father continued to be in possession of the property and the suit was instituted at his instance.

(3.) The question of limitation was heard and disposed of as a preliminary issue. The court held that the suit was not barred by limitation since the claim petition had not been disposed of on the merits. The defendant filed a Revision Petition before the High Court from this order as C.R.P. No. 895 of 1952. The High Court disagreed with the view of the Trial Court and held that O.21 R.63, C.P.C. would apply even to cases in which the order on the claim petition is not passed on the merits. It was argued before the High Court on behalf of the plaintiff that S.8 of the Travancore Code of Civil Procedure, 1100 was amended by Act XXV of 1121, that under the amended section even execution proceedings relating to Kandukrishi lands could not be taken without the sanction of Government, that the attachment effected without such sanction ceased to be in force and that it was therefore not necessary to prefer a claim to the attached property. The High Court did not express any opinion on this question but directed the Trial Court to consider the question of limitation afresh in the light of this argument also. After the remand, the plaintiff applied for amendment of the plaint so as to convert the suit into one on title. The amendment was allowed. The defendant did not file any additional written statement in the case. The court below held that the suit was barred by limitation and dismissed it with costs.