LAKSHMANAN CHETTIAR Vs. MARUDAN CHETTIAR

JUDGEMENT

(1.) THIS second appeal by the plaintiff turns upon the question of limitation. Both the Courts below have agreed and there is no dispute in this court that Art. 116 of the Limitation Act governs the suit. But they have differed as to when time began to run. The lower appellate Court was of the view that the date of the sales in favour of the plaintiff would be the starting point, while the trial Court was of the view that the date of the sales in favour of the plaintiff would be the starting point, while the trial Court held that July 21, 1951, when the plaintiff failed to get a decree declaring his title to the suit property, would be the starting point. I have to decide which of the two vies is the correct one.

(2.) ONE Chennimalai was adjudged an insolvent on February 25, 1933. On August 28, 1934, the Official Receiver sold to one Pathan Chettiar his right, title, and interest in the suit property. Pathan Chettiar got on July 14, 1937 symbolical delivery of the insolvent's share purchased by him. The successors-in-interest of pathan Chettiar sold the suit property to the plaintiff under two sale deeds both dated 20-1-1949. On the strength of the sales in his favour, the plaintiff instituted o. S. No. 86 of 1949 on the file of the District Munsif's Court, Karur, to recover possession of the property. His suit, however, was dismissed on 21-7-1951, and so too his appeal on 12-3-1954. He brought, therefore, the present suit on 12-31957 for recovery of compensation from the respondents for breach of warranty of title in relation to the suit property. Although there were several defences, the one that survives now is the question of limitation. The lower appellate Court as I said, disagreeing with the decree of the trial Court held that the suit was barred by limitation under Art. 116 of the Limitation Act and in that view dismissed the suit.

(3.) SRI. K. S. Ramamurthi, the learned counsel for the appellant, contended before me that having regard to the circumstances of this case, the view of the lower appellate Court that the starting point of limitation was January 20, 1949, when the sales were executed by the respondents could not be supported. His contention was that Pathan Chettiar having admittedly taken symbolical delivery and the parties to the sales having contemplated that the vendee should take steps to reduce the property to his possession, the branch of the covenant of title should be taken to have occurred on 21-7-1951, when the plaintiff's attempt to recover possession failed by a suit therefor being dismissed on that date. On the other hand. Sri K. S. Champakesa Aiyangar urged that the breach occurred even on the date when the sales were executed and that the fact that Pathan Chettiar had taken symbolical possession could make no difference to it.