ILLAVAJJULA RAMALINGAM Vs. KORRAPROLU VEERABHADRAYYA

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the appellants and their father, Ramabrahmam, who has since died. The suit was for damages for breach of the covenants of title and quiet enjoyment in respect of a piece of land of the extent of 60 cents. There was an exchange deed dated 2-4-1924 where under Ramahrahunan, the father of the appellants obtained from the defendant Ac. 1-81 cents in Revision Survey Nos. 675 and 678 plus an amount of Rs. 600.00 in exchange for Ac. 15-7 cents in Revision Survey No. 230. Under the deed, there was a covenant for title as well as one for quiet enjoyment. Ever since, each of the parties to the exchange deed was in possession till the year 1929 when one of Ramabrahmams daughter who was also the defendants sisters daughter filed O. S. No. 79 of 1929 against the defendant as well as Ramabrahmam claiming title to 20 cents out of Ac. 1-81 cents obtained by the latter under the exchange. Her claim was based on the ground that it was her deceased mothers stridhanam property. Her suit was dismissed in the first court; but on appeal she succeeded in getting a decree for partition and separate possession of the 20 cents of land claimed by her. The date of the decree of the appellate Court is 27-7-1936. There was a second appeal to the Madras High Court by the present defendant, but that was dismissed on 5-10-1938. Another daughter of Ramabrahmam instituted a similar suit number as O. S. No. 508 of 1934 and obtained a decree for partition and separate possession of 40 cents of the suit land out of the aforesaid extent of Ac. 1-81 cents. The decree in that suit was passed on 6-12-1939. An appeal taken against that decision was dismissed on 15-9-1942. According to the averment in the plaint in the present suit when his daughters were about to enforce the decrees for partition which they had obtained, Ramabrahmam settled their claims by paying them a sum of Rs. 600.00 under a registered deed (Ex. P-5) of settlement dated 8-9-1943. The plaint also says that he had paid certain sums to them by way of mesne profits, too. The present suit was instituted on 17-4-1946 and seeks recovery of the sum of Rs. 1,599-10-11 which is stated to be the grand total of the sums he had expended for maintaining his possession of the 60 cents in regard to which his daughters had obtained decrees against him. The first Court decreed the claim in so far as it related to the 40 cents but dismissed the claim in regard to the 20 cents on the ground that it was barred by limitation. Against that decree, the present appellants filed an appeal to the District Court, West Godavari, while the defendant presented a memorandum of cross-objections. The learned District Judge held that the claims for damages in regard to both the items of land were barred by limitation and dismissing the appeal allowed the cross-objections.

(2.) The first question therefore for determination in this appeal is as to whether the claim in respect of damages in regard to either item is barred by time. The learned District Judge held that so far as the covenant for title is concerned, it was broken in regard to the 20 cents of land involved in O. S. No. 79 of 1929 on 27-7-1936, the date of the decree of the first appellate Court, and that in regard to the 40 cents, 6-12-1939, the date of the trial Courts decree in O. S. No. 508 of 1934, was the terminus a quo. He applied Article 116 of the Limitation Act because the transaction was evidenced by a registered instrument and held that under that article the claim for damages for breach of the covenant for title was barred as having been made beyond six years from the aforesaid dates. With regard to the claim for damages on the Basis that the covenant for quiet enjoyment was broken, the lower appellate Court observed that the plaint did not aver that there was actual dispossession of the appellants father at any point of time, that in fact there was no actual dispossession and that therefore no cause of action accrued to him.

(3.) I cannot agree with the view taken by the learned District Judge on either of the points. It seems to me that on the authorities which are binding upon me I must hold that in a case like this the covenant for title as well as for quite enjoyment can be said to be broken at the same time, that is, when there is either actual or constructive dispossession. It is true that in Nagamma v. Aghorapalhi Sastri, 1949-1 Mad LT 456: (AIR 1949 Mad 652), which relates to a claim for breach of both the covenants under a sale deed. Division Bench of the Madras High Court consisting of Subba Rao J., (as he then was) and Panchapakesa Ayyar J., used the word actual physical dispossession and observed that limitation does not begin to run against a person in possession even though his right to remain in possession may have been lost by a decree against him". But the learned Judges used those words with reference to the special facts of the case and the arguments addressed before them. That decision merely distinguishes between the right to dispossess and actual dispossession. The mere accrual of a right to dispossess in favour of a third party does not ipso facto and eo instanti give rise to a cause of action in favour of a vendee against the vendor. A vendee cannot complain against his vendor until and unless he is damnified and damage for breach of covenant either for tide or for quiet enjoyment cannot arise until the vendee is dispossessed. But that does not mean that the vendee should be dispossessed only by coercive process in the course of execution of tile decree made against him. There is nothing to prevent a person from surrendering possession in obedience to a decree which he is bound to obey or from buying off, instead of surrendering possession, the third partys right to dispossess him. When he does so, his cause of action against his vendor arises on such surrender or payment (Vide Somasundaram Ayyar v Fischer, ILR 19 Mad 60), to which I shall make a detailed reference later. If, of course, such payment or surrender is made after execution of the decree for possession becomes barred by time, then he would be doing something which he need not have done and cannot complain that he has been hurt. In such a case he may have no cause of action at all. But so long as that decree is not barred, it is open to him to give up possession to the third party OF make a payment to him purchasing his right to dispossess and then claim against his own vendor-damages for breach of his covenants,