V SUNDARARAJA AYYANGAR Vs. RAGHAVA REDDI

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of three fourths of the profits received by defendant 1 in respect of property which was declared by the Court to belong in common to defendant 1 and to the plaintiffs as well as the deceased husband of defendant 2. Defendant 1's father had purchased the entire property from the father of the plaintiffs, and the sons objected to the alienation and it was finally held that the alienation was not binding against them and the result was that defendant 1 became entitled to a one- fourth share in the property purchased by him, the remaining being declared to belong to the sons. The present suit was for profits from the date of the preliminary decree in the previous suit, i.e., 30th March 1920, for a period of seven years. The District Munsif allowed the claim but only at the rate of Rs. 180 a year, the claim being made at Rs. 300 per annum. In appeal, the Subordinate Judge was of opinion that the suit was governed by Art. 109, Lim. Act and reduced the amount of the decree to the amount of profits for only three years prior to suit, that is Rs. 540. The present second appeal is by the plaintiffs.

(2.) Two points arise in the second appeal, namely, (1) whether the plaintiffs are entitled to recover profits for more than six years, that is to say, for all the seven years claimed by them; and (2) whether the suit is governed by Art. 109, Lim. Act, and, if not, whether it is not governed by Art. 120. As regards both the points, the case of the appellants is that the suit is governed by Art. 120 and according to this Article, the period of limitation is six years from the date on which the right to sue accrues. It is clear therefore that the plaintiff's cannot recover in this suit profits for more than six years prior to suit. It cannot be said that they had a right to sue only on a date subsequent to the date from which they claim profits. The first point must therefore be found against the appellants and it must be held that they are entitled, in any event, to not more than six years profits prior to suit.

(3.) As regards the next point, it is urged by the advocate for defendant-respondent 1 that Art. 109 governs the present suit on the ground that his possession after the date of the preliminary decree continued to be or was wrongful. I am unable to accept this contention for there can be no doubt that up to the decree and even during the appeal, his case was that possession was lawful being based on a valid title acquired by him from the father of the plaintiffs. Such possession cannot be said to be wrongful. After the decrees of the Courts by which it was held that he was entitled only to one-fourth of the property, his possession could not necessarily be deemed to be wrongful, for as a co-owner he could be lawfully in possession of the property on behalf of himself and other co-owners. It may be, if he had chosen to do so, be could have openly declared to all the other co-owners that his possession thereafter was on his own behalf and not on behalf of the other co-owners This he has not done, and he cannot be permitted to put forward such a plea in the present suit. The position of the defendant was that of a co owner as decreed by the Court, and prima facie the possession of a co-owner of the whole property is not wrongful. Art. 109, Lim. Act, therefore cannot apply. It is sufficient in this connexion to refer to the Full Bench decision in Yerukola V/s. Yerukola 1922 45 Mad 648 and also the recent decision in Siddalingana Gowd v. Bhimana Gowd 1935 68 MLJ 487 in which that Full Bench decision is referred to. I am of opinion, therefore that the present suit is not governed by Art. 109 but by Art. 120, Lim. Act. It follows from this that the plaintiffs are entitled to get their share of the profits for six years prior to suit and not merely for three years as decreed by the lower appellate Court. That decree will be modified by awarding to the plaintiffs profits for six years at Rs. 180 per year and their full costs in both the Courts below. The appellants are entitled to their proportionate costs of this appeal from defendant-respondent 1. (Leave to appeal is asked for but it is refused.)