NATHULAL Vs. SULAL

JUDGEMENT

(1.) THIS is a civil regular first appeal by the defendant Nathulal against the judgment of the Sub-Judge First Class, Beawar, dated the 25th of August, 1954 in a suit for money among other reliefs.

(2.) THE plaintiffs' case was that the defendant Nathulal and his father Kundanmal had entered into certain dealings with them and that Kundanmal went into accounts on behalf of himself and his son on Asoj Sudi 1, Svt. 1996, corresponding to 13th Oct. , 1939 as a result of which he found that a sum of Rs. 6,662/13/- was due by these defendants to the plaintiffs. It was further alleged that on the same date the defendants aforesaid in repayment of this debt sold the suit house to the plaintiffs for a sum of Rs. 8,000/- and the sum of Rs. 6,662/13/-mentioned above was agreed to be adjusted in part payment of the sale price, and the balance of Rs. 1,337/3/- was further paid by the plaintiffs to these defendants in cash vide Ex. P. 48 and in furtherance of this agreement between the parties, the plaintiffs gave a credit of Rs. 6,662/13) - in the defendants account, and the former were also put in possession of the suit house. It was further alleged that having got in possession of the house in question, the plaintiffs commenced renting out parts of it and realised rent on that account. It so transpired, later on, that defendant Rai Bahadur Seth Bhag Chand Soni had a decree to execute against the defendants and, [in execution of that decree he got the suit house attached as belonging to that contesting defendants. THE plaintiffs filed an objection under O. 21, R. 58 of Code of Civil Procedure, but that objection was dismissed, and the house was ordered to be put up for sale, which appears to have taken place after the present suit was filed sometime in 1946. In paragraph 7 of the plaint, the plaintiffs clearly mentioned that they were in possession of the suit house, four months prior to the institution of the suit, but that the defendants-appellants had illegally deprived them of it, and consequently the present suit was filed on the 3rd of March, 1945. THE plaintiffs, therefore, prayed for a declaration to the effect that they were the owners of the suit house, that the auction sale carried out in respect of it was null and void and not binding upon them, that they be put in possession of the suit house, and alternatively they also claimed that if the Court did not consider it proper or expedient to award a decree in their favour for specific performance or for possession, then the contesting defendant be directed to pay the sum of Rs. 8,000/- to them. To this suit, as amended, Rai Bahadur Seth Bhag Chand Soni, in execution of whose decree the suit house was attached and later sold, was impleaded as defendant No. 1. THE auction-purchaser Ghisulal was impleaded as defendant No. 4. THE contesting defendants were defendants Nos. 2 and 3 in suit. It may be stated at once that this suit was dismissed against all the defendants except respondents No. 2 and 3 by the trial court by its judgment dated 25th of March, T952. This judgment has become final an|d therefore the only question which is material for the purposes of the present appeal is whether the plaintiffs' suit for recovery of Rs. 8,000/- from the contesting defendants was well-founded and has been rightly decreed by the trial court against them. Kundanmal defendant having died during the pendency of the litigation, Nathulal alone is the appellant before this Court. THE defendants resisted the suit on a number of grounds. THEy admitted that there were certain dealings between them and the plaintiffs, but, according to them, the accounts having been gone into on Asoj Sudi 1, Svt. 1996, they had been cleared and whatever amount was due to the plaintiffs from them had been paid back in cash. As regards the transaction of sale on which the plaintiffs relied, the case of the defendants was that, although there were negotiations between the parties for the sale of the suit house by the defendants in favour of the plaintiffs, these negotiations did not materialize, as the entire amount due from them to the plaintiffs had been paid off as stated above. Curiously enough the defendants admitted that the plaintiffs had been put in possession of the suit property on Asoj Sudhi 1, 1996, being the date on which the accounts had been gone into and cleared off. This the defendants sought to explain by saying that they had borrowed from the plaintiffs a sum of Rs. 1,500/- on that day under a separate khata and that the plaintiffs had been put in possession of the suit property so that this money be recovered by them out of the rent realised for the same. THE case of the defendants further was that it was agreed between the parties that the plaintiffs would remain in possession of the property for a period of five years only, and consequently they got back the possession of the suit house from the plaintiffs, and that the same was in their possession at the date of the suit. THE defendants thus flatly denied that they had ever executed a sale-deed or an agreement for sale or even the receipt Ex. P. 48 in respect of the suit property in favour of the plaintiffs and they also denied that there was any money due by them to the latter as they had made the entire payment in cash on Asoj Sudi 1, 1996, the date on which they had gone into the accounts, and that nothing further had remained to be paid by them. Lastly, the defendants contended that the plaintiffs' suit was barred by limitation. As already stated, the trial court dismissed the plaintiffs' suit in so far as it related to the relief of specific performance against all the other defendants, but it decreed the suit for recovery of Rs. 8,000/- so far as the defendants Nathulal and Kundan Mal are concerned. Kundanmal having died, Nathulal alone has come up in appeal to this Court.

(3.) LASTLY, I should like to invite attention to that well settled principle of the Law of Limitation that where two articles of such law may be wide enough to cover a given right or suit and it can be postulated of neither of them that the one applies more specifically than the other, then the Court should lean in favour of the application of the provision which would keep the right of suit alive in preference to that which would destroy it. Judging from this angle also, I feel strongly persuaded to think that the appropriate article, which should be applied in this case, is Art. 97 and not 62, and I hold accordingly.