(BADAKARA) KRISHNA BHATTA Vs. GOVINDA BHATTA

JUDGEMENT

(1.) In this case the defendant is the appellant. The defendant sold certain immovable properties to the plaintiff under Ex. A dated 24th. April 1918. The plaintiff, not having been able to obtain possession of the properties, filed O.S. No. 403 of 1918 against the present defendant and certain others not parties to the suit for recovery of possession of the properties. O.S. No. 403 of 1918 was dismissed on the ground that the plaintiff's vendor, that is, the present defendant was only a benamidar for his vendor. Subsequently, the present plaintiff who, under the terms of and towards the consideration for the sale-deed executed by the defendant to him, executed a promissory note in favour of one Narayana Bhatta for the amount due to Narayana Bhatta from the defendant, filed O.S. No. 458 of 1920 for cancellation of that note, on the ground that the plaintiff did not obtain possession of the properties sold to him and that consequently there was no consideration for the promissory note executed by him to Narayana Bhatta. That suit also was dismissed. It would appear that in that suit the plaintiff also prayed for the return by the present defendant of the sum of Rs. 63-8-0 said to have been paid by the plaintiff in cash towards the consideration for the sale- deed, Ex. A. The plaintiff did not get a decree for that amount either. The plaintiff then filed in 1923 the present suit to recover damages for breach of covenant of title contained in Ex. A construed with reference to the provisions of the Transfer of Property Act.

(2.) The main pleas of the defendant were one, limitation, and the other, that the plaintiff was not entitled to damages, because the sale-deed was devoid of consideration. On the question of limitation, it is clear that the decision of both the lower Courts is right, because, according to the decisions of this High Court, the sale-deed, Ex. A, being a registered document, any suit to recover;damages for breach of covenant of title would be governed by the period of six years, and the suit being brought in 1923, that is, within six years from the date of the sale- deed, is not barred.

(3.) On the other question, the lower appellate Court has held that, though the plaintiff might have knowledge of the defect of title when he took the sale-deed Ex. A, yet that did not under the decisions of this Court preclude him from filing a suit damages based on covenant of title, under the provisions of Section 55, T.P. Act. Having regard to the decisions of this Court, I am of opinion that the lower appellate Court was right in its finding on this question.