NINGAPPA AWWAPPA Vs. DANAPPA SHARNAPPA

JUDGEMENT

(1.) The suit out of which this appeal arises was filed by the plaintiff for partition and possession of a moiety of survey Nos. 138 and 139 of Bagalur in Bijapur District. The two lands belonged to two brothers Nagappa and Rayappa and at the public auction held in execution of a money decree obtained against Nagappa by one Mallappa in Suit No. 383 of 1919, Nagappa's half share in the lands was purchased by the plaintiff on 23 September 1935. When Mallappa's suit was pending, Nagappa and Rayappa sold both the lands to their brother-in-law, defendant 3, on 16 October 1920. At that time one Saibanna was in actual possession of the two lands. It appears from the Record of Rights that on 17 July 1919, Nagappa and Rayappa borrowed Rs. 350 on the mortgage of Survey NO. 138 and Rs. 250 on the mortgage of survey No. 139 and gave possession of both the lands to Saibanna on condition that he should enjoy the income of survey No. 138 for seven years and that of survey No. 139 for nine years in full satisfaction of the two loans and then restore their possession to them. Saibanna remained in possession till 7 November 1934, and then handed them over to defendant 3 admitting that his dues had been satisfied. The plaintiff filed this suit on 5 August 1938, and during the pendency of the suit, defendant 4 purchased the lands from defendant 3 and got himself impleaded as a co-defendant. The plaintiff's claim was resisted on various grounds, but the one that was pressed till the end was that the suit was time-barred under Art. 137, Sch. 1 to Limitation Act. The trial Court held that the claim was in time and passed the usual preliminary decree for partition as prayed for. The appeal to the District Court by defendants 3 and 4 was dismissed summarily. The only contention urged in this Court is that the suit is time-barred under Art. 137.

(2.) That Art. prescribes a period of twelve years for a suit by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, and that period begins to run from the date when the judgment-debtor is first entitled to possession. It is argued that though Nagappa and Rayappa had placed Saibanna in possession of both the lands as a usufructuary mortgagee, the mortgage was void as no registered mortgage deed had been executed as required by Section 59, T.P. Act and hence, Saibanna being a trespasser, Nagappa and Rayappa were entitled to recover their possession on the very day on which they gave it to Saibanna. If so, the period of twelve years under Art. 137 commenced to run from 17-7-1919, and this suit brought by the plaintiff as auction-purchaser more than twelve years thereafter is out of time. This argument is fallacious and cannot be accepted for three reasons.

(3.) In the first place, the words, "when the judgment-debtor is first entitled to possession" in column 3 of Art. 137 relate to the beginning of dispossession referred to in column 1 of that Article, and the meaning of the Art. is that if, supposing no sale had taken place, the judgment-debtor's title would have been alive at the time the auction-purchaser's suit is brought, then such suit would not be barred. But, if on the other hand, at the date of the auction-purchaser's suit the judgment debtor was out of possession for twelve years and had thereby lost his right to recover possession, then the auction-purchaser's suit would be time- barred. Although the judgment-debtor may be out of possession at the date of auction- purchaser's suit, yet if it is shown that the judgment-debtor's suit for possession would be in time, then the suit of the auction purchaser also would not be barred under Art. 137. The test is not merely when the judgment-debtor becomes entitled to possession but when he is excluded from possession wrongfully so as to start the period of limitation to run against him. Art. 136, which relates to a private sale, is similarly worded, and in explaining it Knox and Aikman JJ. observed in 23 ALL. 4421 (p. 445): Suppose that a vendor succeeds to property on his father's death, remains in possession thereof for twenty years, is then ousted by a trespasser, and two years after this sells his rights; we think that it could not be contended in a suit brought by the vendee against the trespasser that, inasmuch as the plaintiff's vendor was first entitled to possession on his father's death, twenty-two years before, the suit was out of time.