CHATTAR SINGH Vs. MUL KUNWAR AND MUSAMMAT NAUGI

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought under the following circumstances: Two brothers, Dip Chand and Lajja Ram, owned certain property. Dip Chand died in 1876 leaving him surviving his sons Kanhaiya Lal and Makhan Lal and a widow Musammat Naugi. The names of these persons were entered in the revenue records in regard to his half share of the property. Lajja Ram died in 1885. His share devolved on his nephews Makhan Lal and Kanhaiya Lal. Makhan Lal died leaving a minor son, " Ghanshiam Das, and a widow, Musammat Mul Kunwar. On the 16 of September 1898 Mul Kunwar sold one-half of the property to the plaintiff. On the 10 of January 1899 Kanhaiya Lal sold the other half. The plaintiff applied for the entry of his name in respect of the entire village, but his application was rejected on the 16 of August 1899 as regards the share which was recorded in the name of Musammat Naugi, the widow of Dip Chand. The plaintiff then sued for a declaration of his right and for possession against Naugi, but that suit was dismissed on the 23 of November 1900. On the 9 of July 1904 he brought the present suit against Musaumat Mul Kunwar and her minor son Ghanshiam Das as the principal defendants, and he claimed the following reliefs (1) that possession be awarded over the property, (2) that if possession be not awarded a proportionate part of the consideration for the sale with interest be awarded to him, and in case the first relief was granted, that he might be awarded further damages.

(2.) The Court of first instance granted the second prayer in the plaint, and the decree of that Court has been affirmed by the lower appellate Court.

(3.) The defendants have preferred this appeal, and the first contention raised on their behalf is that the claim is barred by limitation. We may observe that this plea was not set up in either of the Courts below. The contention is that the suit is one for money paid on an existing consideration which has failed, and that therefore article 97 of Schedule II of the Limitation Act applies, and, as the suit was brought after three years from the date on which the plaintiffs suit against Musammat Naugi was dismissed, this claim is time-barred. We do not think this contention is right. The claim is upon a covenant contained in the sale deed, that covenant being to the effect that in the event of a claim being advanced by a co-sharer, or in the event of the purchaser losing any part of the property in any other way, he would be entitled to a refund of the consideration and to damages. Now this is clearly a suit on that covenant and for the breach of it, namely, the failure of the defendants to put the plaintiff into possession of the share of the property sold which was recorded in the name of Musammat Naugi. The claim therefore was clearly one governed by article 116 of schedule II, as the sale deed was a registered instrument.