THILLAIKANNU ACHI Vs. SHEIK ABDUL KADIR ROWTHER

JUDGEMENT

(1.) The plaintiff's (petitioner s) suit brought for damages for breach of the implied covenant of title contained in a sale to her by the defendant (Ex. A), dated 8 December, 1916, has been dismissed by the learned Judge on the ground of limitation. There is no question that if this opinion is not correct the petitioner is entitled to a decree. By the sale (Ex. A) the defendant purported to sell to the petitioner (plaintiff) 4 1/2 cents of land of which from the previous litigation it appears that he gave possession of If cents. For the other 3 cents there were disputes between herself and her vendor on the one hand and one Subbiah Pillai, the holder of an adjacent land, who claimed it under another title, on the other. In 1920 two suits were brought, one by Subbiah Pillai against the petitioner's sons (since tried as O.S. No. 29 of 1921 in the Court of the District Munsif, Tiruvarur) in which Subbiah Pillai sued to remove the petitioner's sons from their admitted occupation of a shed (saipu) and to recover one cent of land on which it stood on the ground that they were mere licensees; and the other brought by this petitioner against Subbiah Pillai and her vendor (subsequently tried as O.S. No. 168 of 1921 in the same Court) in which the petitioner sought to recover the 3 cents of land of which she alleged she had been given possession by her vendor but on which Subbiah Pillai had trespassed. The two plots were apparently near each other. In the result both suits were dismissed on the finding in Subbiah Pillai's suit that the petitioner and her sons had been occupying the shed and the land on which it stood in their own right for a long time; and in the petitioner's suit that Subbiah Pillai had likewise been in occupation of the 3 cents of land along with some neighbouring land in his own right for a long time. This decision of the District Munsif against the petitioner was pronounced on 23 December, 1921, and the decision in appeal confirming it by the learned District Judge of Negapatam on 29 January, 1923. This suit was filed on the 4 January, 1928, when the Court re-opened after Christmas, that is, the last day on which the suit could be brought if the proper period of limitation is six years and the starting point is taken as 23 December, 1921. The learned Judge has held that the suit is barred by limitation on the ground that it falls within the first of the three classes of such suits mentioned by Seshagiri Aiyar, J., in Subbaroya V/s. Rajagopala (1914) I.L.R. 38 Mad. 887 at 889. He has held that the Art. properly applicable is 116. But he has held that the period of limitation begins to run in this case on the date of the sale deed (Ex. A) and not as contended by the plaintiff on the date of the decision in O.S. No. 168 of 1921, namely, 23rd December, 1921.

(2.) As a result of a series of decisions of this Court of which it is sufficient to refer to Arunachala V/s. Ramasami (1914) I.L.R. 38 Mad. 1171 : 27 M.L.J. 517, Patrachariar v. Alamelumangai Ammal (1926) 25 L.W. 11 and Sigamani Pandithan V/s. Munibadra Nainari it cannot be doubted that the provision of the Limitation Act applicable is Art. 116. It was contended that the proper Art. is Art. 62 or 97, and the decision in Subbaroya v. Rajagopala (1914) I.L.R. 38 Mad. 887 at 889 was relied upon. The facts of that case were different and the grounds of decision of Seshagiri Aiyar, J., who decided it in the first instance and of the Appeal Bench who confirmed his decision are also not identical. Whereas Seshagiri Aiyar, J., took the view that Art. 116 was applicable to the case, the Bench who heard the appeal confirmed his decision on the ground stated by Miller, J., in Ramanatha Aiyar v. Ozhaloor Pathirisseri Raman Nambudripad (1913) 14 M.L.T. 524 that the proper Art. to be applied was 97. That was perhaps appropriate to the facts there which were that the plaintiff got possession under a sale deed and remained in possession until evicted in 1911 and the want of title was established by litigation which ended in 1918. In these circumstances it was held that the case can be properly described as one for money paid on an existing consideration which afterwards failed when the litigation ended.

(3.) In Arunachala V/s. Ramasami (1914) I.L.R. 38 Mad. 1171 : 27 M.L.J. 517 the plaintiff who took a sale deed in 1904 was unable to get possession at all and brought the suit in 1910, but was unable to get it. The question was whether the plaintiff could recover the money paid. It was held by a Bench after a full examination of the authorities that the proper Art. to be applied is 116. That decision applies to this case.