MULTANMAL JAYARAM Vs. BUDHUMAL KEVALCHAND

JUDGEMENT

(1.) On the 1st February 1911, the plaintiffs bought for a sum of Rs. 5,000 two lands under a registered sale-deed passed to them by one Amolak as manager of a joint family. The plaintiffs were put in possession. One of the lands, Survey No. 192, was leased to one Bhavani under a rent-note. When the period of the rent- note had expired Bhavani refused to vacate and the plaintiffs had to sue for possession. In a possessory suit they got a decree for possession and filed Darkhast No. 440 of 1912 for possession. Bhavani retaliated by filing Suit No. 31 of 1913 claiming the property as his own and got a decree in September 1919, and thereafter he remained in possession of Survey No. 192 as owner. An appeal was filed by the plaintiffs against the decree in Suit No. 31 of 1913 in the District Court which confirmed the decree of the lower Court on the 15th March 1915. The plaintiffs then filed a Second Appeal to the High Court, and that appeal was dismissed on the 28th November 1916.

(2.) The plaintiffs in this suit seek to recover from the brother and two sons of Amolak the amount they paid on the sale-deed on the 1st February 1911, together with the amount spent by them in improving the land by building a well, with interest and damages and costs incurred by the plaintiffs in conducting Suit No. 31 of 1913 making a total of Rs. 7,525.

(3.) All the issues have been found in favour of the plaintiffs, but the plaintiffs suit has been dismissed as barred by limitation. Two questions arise: (1) what Article of the Indian Limitation Act is applicable; and (2) when did time begin to run. The defendants say that Article 97 applies and time began to run from the date of the failure of consideration, that is to say, when a decree was passed in favour of Bhavani in September 1913. The plaintiffs contend that if Article 97 applies, the date of the failure of consideration must be taken as the date of the High Court decree when it was finally decided that Bhavani was entitled to possession of the property. That point arose recently in Martand v. Dhondo(1920) 23 Bom. L.R. 69. In that appeal we followed the decision in Hukumchand v. Pirthichand (1918) 21 Bom. L.R. 632, P.C., where it was held that failure of consideration occurs at the date of the decree of the first Court, and not at the date of the appellate decree confirming it. It appears from the evidence that Amolak, was fighting the suit filed by Bhavani, no doubt in his own interest, but he must have been aware that if Bhavani succeeded the plaintiffs would make a claim against him for the return of the purchase money. Although he was a respondent in the plaintiffs appeal, he was a respondent in the interest of the appellant, and was endeavouring to get the decree reversed, for he incurred expenses in instructing pleaders and counsel to support the appellant. It might be said, therefore, in a case where two parties now in opposition have previously combined in order to resist the attempts of a third party to get possession of property, the subject-matter of the transaction between them, either that there was an agreement between the opposing parties that it should not be considered that there was no failure of consideration until the final decree in the suit was passed, or that one party induced the other not to take proceedings by filing a suit for money paid on an existing consideration which afterward failed, until the question as to who was entitled to the property was finally decided, I think myself that it would be perfectly open to the parties to come to an agreement that the decision of the lower Court should not be treated as a failure of consideration. I do not think, speaking for myself, that that could be taken as a contract contrary to the provisions of the Indian Limitation Act. I also think that the combination of the plaintiffs and the defendants in this case against Bhavani might be considered as preventing time from running. That certainly was the finding of the appellate Court in the case which I have referred to in the argument which is not reported, where an auction purchaser at a mortgagee s sale filed a suit against the mortgagee because either he was unable to get possession or had been ousted by the mortgagor, but all the time the parties were combining in order to get possession of the property from the mortgagor, and the appellate Court expressed the opinion that the auction purchaser s suit against the mortgagee to recover what he had paid was premature. However that may be, those are very interesting questions which need not be decided in this case, because I think there is another answer to the defendants argument that the suit was barred by limitation.