BHAGATHYAMMAL Vs. DHANABAGYATHAMMAL

JUDGEMENT

(1.) This second appeal has been filed by the plaintiff in 0. & No. 1027 of 1970 in the court of the District Munsif of PattukottaL The suit property is situate in Maharaiasamudram village which was an inam village taken over by the Government. Proceedings for Patta in relation to the property were said to be pending. The plaintiff purchased this property under sale deed dated 16th June. 1968 from the fourth defendant. Alleging that defendants 1 to 3, who attempted to purchase the suit property from the fourth defendant did not succeed and that they obstructed the plaintiff from enjoying the suit property be came forward with the present suit initially far the declaration and permanent injunction or in the alternative, for recovery of possession as against defendants 1 to 3. The second defendant died during the pendency of the suit and -his legal representatives are defendants 5 and 6. The fourth defendant, the vendor to the plaintiff was impleaded on 2-2-1972 in pursuance of an application filed on 16-10-1971- Along with this application there was a prayer for amendment of the plaint for recovery of damages from the fourth defendant. As in the -present appeal we are concerned only with the fourth defendant, it is unnecessary to notice the defence of the other defendants except to say that they claimed title to the suit property. The fourth defendant in her written statement contended that the Property belonged to an inamdar by name Siviii Rarnachandra Katae Rao Sahib and that his son issued a Datla to her in respect of the suit land. Sh- claimed to have been in possession thereof to the extent of 2 acres and 61 cents. The plaintiff, according to her, entered into a sale deed for the purchase of the property for As. 2000 but had actual1y paid only Rs. 800 retaining the balance for , being paid after peaceful possession of the property was obtained. It was contended that as he had not honoured_ the contract, the plaintiff was not entitled to any relief as against her. There was also a plea of limitation.

(2.) The learned District Munsiff found that the plaintiff was not entitled to the relief of. declaration or injunction or to the relief for recovery of possession- He held also that the fourth defendant had no title to the suit property. He however decreed the suit in favour of the plaintiff for. damages against the fourth defendant.

(3.) 'The fourth defendant filed an appeal which was heard by the learned District Judge, West Thanjavur. He went into the question whether the plaintiff was entitled to any damages from the fourth defendant. He held that the evidence clearly showed that the fourth defendant had no title. or possession. of any specific portion of the suit survey number at any time and that taking advantage of some old pattas issued in the name of the fourth defendant, the plaintiff manouvred to get a sale deed in her k4our so that she could try her luck in a court of law. In' his view the plaintiff had wantonly purchased litigation.- He went into the question of limitation which was likely to arise in, the event of, the Plaintiff being entitled-to the damages.. He found that the starting point of limitation would be the date of sale and as the amended claim as against the fourth defendant was made only an 12-9-1,972, the suit as against the fourth defendant was barred by limitation. It is this decision which is challenged by the unsuccessful fourth defendant in both the courts in the second appeal.. At the time of the, admission of the second appeal the question, formulated for decision was as follows: "Whether the claim for refund of the sale 'consideration is barred by limitation?" The learned counsel for the appellant wanted to argue that some principle of estoppel based, on S. 115 of the Indian 'Evidence Act (sic).-He was not in a position *to point out any ground in the grounds of appeal or even any question as formulated-by him at the time when the appeal was admitted in order t o consider . whether. notwithstanding 'the framing of the question in the manner mentioned above, he could be allowed to go into the question of estoppel. Therefore. I confine myself only to the question of limitation and the incidental Points that.arise there from.