KARAKKATTITATHIL RAYARAPPA NAMBIAR KARNAVAN AND MANAGER OF HIS TARWAD Vs. KOYOTAN CHABLE VEETIL KAMARAN KARNAVAN OF HIS TARWAD (DEAD)

JUDGEMENT

(1.) Plaintiff, as the Karnavan of his Tarwad, sues to recover possession from the defendants. His case is that his Tarwad is the jenmi of the properties in suit, that its title was recognised by the Ist defendant in Original Suit No. 142 of 1868 on the file of the Court of the District Munsif of Kavvayi (under the Zilla Court of Tellichery), and that the 1st and other defendants who are Anandravans of the defendant s Tarwad hold the property under a Kanom from the plaintiff s Tarwad. The plaintiff further stated that a sum of Rs. 400 was paid towards the Kanom and that the defendants are bound to surrender on the receipt of the balance. The defendants contended that the jenm title belonged to their Tarwad and not to the plaintiff s Tarwad.

(2.) The Subordinate Judge dismissed the suit. The plaintiff has appealed. A preliminary objection is taken by the respondept that the appeal filed in this Court is barred by limitation. The original valuation of the suit was below five thousand ruples; the plaintiff first presented an appeal to the District Court which admittedly was in time. Objection was there taken that the appeal should be preferred to the High Court. Upholding this objection, the District Judge returned the appeal for presentation to this Court on the 24th of January 1916, and it was filed on the 31st January 1916.

(3.) Mr. Menon contended that the filing of the appeal in the District Court was due to an error of law and that Section 5 of the Limitation Act is not applicable to such a case; and he relied on Ramjiwan Mal v. Chand Mal 10 A. 587 : A.W.N. (1888) 258 : 6 Ind. Dec. (N.S.) 395. That and other decisions were considered by the Judicial Committee in Brij Indar Singh v. Kanshi Earn 42 Ind. Cas. 43 : 33 M.L.J. 486 : 22 M.L.T. 362 : 6 L.W. 592 : 126 P.W.R. 1917 : 15 A.L.J. 777 : 19 Bom. L.K. 866 : 3 P.L.W. 33 26 C. L J. 572 : 104 P.R. 1917; (1917) : M.W.N. 811 : 22 C.W.N. 169 : 127 P.L.R. 1917 : 45 C. 94 (P.C.) where it was pointed out that it is not the rule that delays due to an error of law are not within Section 5 of the Limitation Act. We hold, therefore, that we have power to excuse the delay. As regard the interval between the return of the plaint and its presentation in the High Court, having regard to the fact that a fresh vakalat had to be obtained from the parties and to the distance between Madras and Tellioherry, we do not think there was any negligence. We, therefore, overrule the preliminary objection.