MUTHIAH Vs. MICHAEL

JUDGEMENT

(1.) IN this Letters Patent Appeal, the judgment of Alagiriswami, J. , dismissing S. A. No. 85 of 1965, is questioned.

(2.) THE first defendant in the suit is the appellant before us. The property in dispute is an agricultural land measuring about 70 cents in extent. The second defendant in the suit is the father of the plaintiff who filed the suit for declaration of his title and for possession of the property.

(3.) THE plaintiff had left India for Ceylon while he was young. The land in question was in the physical possession of his father, the second defendant in the suit. While the plaintiff was in Ceylon, the second defendant sold the property to the first defendant (appellant before us) under the sale deed Ex. B-1 dated 24-51943. In this sale deed, the second defendant described himself as Michael, son of royappa. As a matter of fact, the second defendant's name is Thaveethu though his father's name Royappa. Michael is the name of the plaintiff. As the property was standing in the name of the plaintiff who was away in Ceylon, the second defendant thought fit to describe himself as Michael and execute the sale deed ex. B-1 in favour of the first defendant. From the date of sale, the first defendant has been in possession of this property. The plaintiff returned to India by the end of 1959 and in 1960 he filed the suit, out of which this appeal arises, for declaration of his title to the property and for possession. He alleged that the sale as per Ex. B-1 had been brought about as a result of fraud between the two defendants, that the same is void as against him and that he was entitled to recover possession of the property. By the time the suit was instituted, the property was in the possession of the first defendant for about 17 years. The plaintiff pleaded Section 18 of the Indian Limitation Act (Act IX of 1908) to get over the plea of limitation. That plea was not accepted by the trial Court and the suit was dismissed on the ground of limitation. However, the first appellate court took a direction view and held that Section 18 is applicable to the facts of the case and allowed the appeal and decreed the suit. The first defendant, who is the appellant before us, filed the second appeal which was heard by Alagiriswami, J. , and the learned Judge, relying upon Rahimbhoy Habibbhoy v. Charles Agnew turner, (1893) ILR 17 Bom 341 (PC) and Thakur Mahton v. Jhaman Mahton, AIR 1924 Pat 496 held that Section 18 would be applicable to this case. This view of the learned Judge is challenged in this Letters Patent Appeal.