NATESA PILLAI Vs. KONERI NAICKER AND ANR.

JUDGEMENT

(1.) THE lands covered by Patta No. 55 in Naraiyaur Village in Tiruvannamalai Taluk belonged to one Thanji Ammal. She mortgaged the same to the plaintiff for Rs. 700. On that mortgage, the plaintiff filed O.S. No. 7 of 1956 on the file of the Court of the District Munsif of Tiruvannamalai and got a decree, executed it and himself purchased the property in Court auction. The sale was confirmed on 9th February, 1959, and the plaintiff obtained delivery of possession on 6th March, 1960. On 12th June, 1959, the first defendant, Village Munsif of Naraiyur Village suddenly went to the plaintiff's house and demanded Rs. 9 -75 as kist for fasli 1368, in respect of lands covered by Patta No. 55 and served a distraint order. The plaintiff represented that he was not liable to pay and that only Thanji Ammal was liable to pay. The first defendant thereupon attached two bulls belonging to the plaintiff. In view of that, the plaintiff paid the sum of Rs. 9 -75 to the first defendant under protest and got the bulls released. Thereafter on 25th February, 1961, the plaintiff instituted O.S. No. 264 of 1961 on the file of the Court of the District Munsif of Tiruvannamalai for recovery of the said sum of Rs. 9 -75 from the first defendant and the State of Madras represented by the Collector of North Arcot District at Vellore, impleaded as 2nd defendant. The defendants raised several defences and the learned District Munsif framed the necessary issues arising out of the pleadings. The learned District Munsif by his judgment and decree dated 1st October, 1962, held that the suit as far as the 2nd defendant (State of Madras) was concerned, was liable to be dismissed on the simple ground that the notice contemplated by Section 80 of the Code of Civil Procedure was not served. Though he also came to the conclusion that the State could not be made liable for the tortious acts of its subordinates, the same was unnecessary, in view of his finding that the suit as such was not maintainable as against the State of Madras. As far as the 2nd defendant was concerned the learned District Munsif came to the conclusion that the case came under Section 59 of the Madras Revenue Recovery Act and the suit was barred by limitation with reference to the provisions contained in the said section. Against this judgment and decree the plaintiff preferred A.S. No. 537 of 1962 on the file of the District Court, North Arcot District, which was transferred as A.S. No. 86 of 1963 on the file of the Court of the Subordinate Judge, Vellore, and was disposed of by the learned First Additional Subordinate Judge on nth October, 1963. The learned Subordinate Judge disagreed with the conclusion of the learned District Munsif with regard to the question of limitation against the first defendant and decreed the suit of the plaintiff as against the first defendant. Hence present second appeal by the first defendant in the suit.

(2.) MR . T. R. Ramachandran, learned Counsel for the appellant, contends that the conclusion of the learned Subordinate Judge on the question of limitation is erroneous in law. The learned Subordinate Judge has expressly found that the suit did not fall within the scope of Section 59 of the Madras Revenue Recovery Act. However, it is not clear by what Article of the Limitation Act the suit was governed, in the opinion of the learned Subordinate Judge, since except referring to the argument advanced on behalf of the plaintiff that Article 36 of the Limitation Act applied, he himself had not given a finding as to which Article of the Limitation Act applied to the suit. The contention of Mr. Ramachandran is that Article 36 has no application, but it is only Article 28 that is applicable to the suit in question. On the other hand, Mr. M. V. Krishnan, learned Counsel for the plaintiff contends that the suit is really governed by Article 36 of the Limitation Act, 1908. Therefore, the question for consideration before me is whether it is Article 28 or Article 36 of the Limitation Act, 1908 which applied to the suit, because, if it is Article 28 that is applicable, the suit is barred by limitation and on the other hand, if it is Article 36 that is applicable, the suit is not barred by limitation.

(3.) THE said Articles are: