RAMJIRAO SATWAJIRAO Vs. MARUTI NARAIN

JUDGEMENT

(1.) 1. The suit is for the refund of consideration under an agreement discovered to be void, and the sole point which arises now relates to the starting point of limitation. On 1st December 1911 the defendant sold certain immovable property to the plaintiff but omitted to deliver possession : in fact the defendant never had possession; that had all along been with some third persons. In 1925 the plaintiff sued the defendant and three others for possession. On 15th April 1925 the first Court in that suit dismissed the plaintiff's claim on the ground that his vendor, the present defendant, had no title. There were two appeals and in both the decision of the first Court was upheld. The judgment of the second appellate Court was delivered on 6th December 1927. Thereupon the plaintiff brought the present suit on 11th November 1929 for return of his purchase money and interest. He claimed that limitation began on 6th December 1927, the date of the second appellate judgment.

(2.) ONE of the grounds urged before me is that the representation of the defendant about his title was fraudulent, and that the fraud was not discovered till 6th December 1927 when this Court finally decided the matter in the previous suit. I find however that the suit was not framed on that basis. There is no mention of any fraud in the plaint ; and in the rejoinder this is all that was said : Again, the fraud practised upon the plaintiff came to the knowledge of the plaintiff when the second appellate Court delivered its judgment.

(3.) THEIR Lordships of the Privy Council have twice decided that limitation will ordinarily run from the data of the agreement in these cases : Annada Mohan Boy v. Gour Mohan Mullick AIR 1923 PC 189 and Hanuman Kamat v. Hanuman Mandur (1892) 19 Cal 125. But their Lordships have also decided that there may be special circumstances in which it would not. In Harnath Kunwar v. Indar Bahadur Singh AIR 1922 PC 403 they held that when there is a misapprehension as to the private rights of the vendor in the property which he purported to sell, the limitation begins when the true nature of those rights is first discovered. They decided on the facts in that case that the discovery was made not earlier than the time when the demand for possession was resisted. The plea was allowed at the Privy Council stage because there was sufficient material on the record to enable their Lordships to deal with it in that way, oven though that aspect of the case had not been satisfactorily presented or developed in the pleadings and the proceedings before the lower Courts.