JAWAHAR RAM Vs. JHINGURI LAL

JUDGEMENT

(1.) This appeal has arisen from a suit brought by the appellants for refund of the price paid by them for a zamindari share in two villages to defendant 1 and his deceased brother Mahadeo Prasad, who executed a sale deed on 15 April 1907, in favour of some of the plaintiffs and the predecessors of the others. The principal question which arises in appeal is whether the suit has been rightly held by the lower Court to be barred by limitation.

(2.) The plaintiffs were deprived of the property conveyed by the aforesaid sale- deed in consequence of a decree for possession obtained by the sons of defendant 1 in suit No. 69 of 1923. The sons impugned the sale-deed executed by their father and Mahadeo Prasad on the ground that the property which it purported to convey belonged to the joint family of which the plaintiffs of that suit and the vendors were members and that there was no legal necessity for the alienation. The suit was decreed by the first Court on 31 January 1924. Delivery of possession was taken by the successful plaintiffs on 27 February 1924. Part of the land included in the shares was under the cultivation of the vendees who did not vacate it. Disputes arose between the sons of defendant 1 and the vendees, which led to proceedings under Section 145, Criminal P.C. These proceedings resulted in favour of the vendees, and the sons of defendant 1 had to institute another suit for possession in respect of the plots which had remained in possession of the vendees in spite of the symbolical delivery of possession. It is not disputed that the vendees retained possession of such plots till a time within six years before the institution of the present suit which was brought on 30 June 1930. From the decree obtained by the sons in the Court of first instance the vendees had appealed to the District Judge who dismissed it on 19 January 1926. A second appeal to the High Court was dismissed on 31 October 1928. A Letters Patent appeal was likewise dismissed on 2 June, 1930. It would be seen that the present suit is within six years from the judgment of the District Judge and the judgments of the High Court, in second and the Letters Patent appeals, and from the time when they finally lost possession of the plots actually cultivated by them. It was however brought, more than six years after the decree of the first Court and after the dakhal dehani in respect of the shares in dispute. The controversy between the parties relates to the starting point of limitation. The present suit must be held to be barred, whichever Art. of limitation mentioned in the course of the arguments ( Arts. 62, 97, 116 and 120) be considered to be appropriate, if time is taken to have run from the date of the decree of the trial Court or the date of delivery of possession. If on the other hand, time be reckoned from the decree of any of the Courts of appeal, the suit is in time if Art. 116 is applicable. If the period of limitation be reckoned from the final judgment of the High Court, the suit, is in time whichever article referred to be applied.

(3.) To determine the proper article of the Limitation Act applicable to the circumstances of the case and the starting point thereunder, the nature of the plaintiffs claim has to be examined. The plaintiffs claimed refund of the price and damages basing their claim on a covenant contained in the sale-deed, dated 15th April 1907, which runs as follows: Now we, the executants, or our heirs, neither have nor shall have any concern or connexion with the shares sold. If in future we, the executants, or our heirs, bring any sort of claim in respect of the thing sold, it shall be false and illegal. If by reason of the act of us, the executants, or the omission of us, the executants or our heirs, any sort of defect is found in respect of the shares sold and it is interfered with, the vendees shall have the power to recover by proper means the whole of their sale consideration from our house and moveable and immovable property....