ALLURI VENKATASOMARAJU Vs. ALLURI VARAHALARAJU ALIAS RAMABADRI RAJU

JUDGEMENT

(1.) In this case the plaintiffs are the appellants. In September 1920 they brought this suit to recover possession with mesne profits of certain lands from the defendants. Plaintiffs father bought the land in question from defendant 1 in 1911. Proceedings were taken in June, 1915 against the plaintiffs father under Section 145, Criminal Procedure Code, when defendant 2 resisted his possession in which the possession of the 2nd defendant in the land was confirmed. The question is whether those proceedings bind the plaintiffs who are the undivided sons of their father Alluri Subbaraju who bought the property on behalf of the joint family. The importance of it is this, that if those proceedings do bind the present plaintiffs they are out of time with this suit, because it was instituted more than three years from the date of the final order in the case (Ex. III) under Section 145, Criminal Procedure Code. It is argued that this order does not bind the sons who were not parties to it and was made without jurisdiction. The order came up to this Court in Criminal Revision Case No. 205 of 1916 after the death of the father Alluri Subbaraju when 1 plaintiff asked to be brought on as a legal representative of his father. In the then state of Section 145, Criminal Procedure Code, this was impossible, but this Court held that this order was not made without jurisdiction. We are therefore bound by this decision as to this latter point. An order under Section 145, Criminal Procedure Code, applies to anybody bound by such order or any one claiming under such person. It is perfectly clear that the plaintiffs were aware of the proceedings, also that the property was acquired for the joint family and the plaintiffs father was in possession as manager on their behalf. It is also plain that Section 145, Criminal Procedure Code, is only a quasi criminal matter as it falls within the purview of Art. 47 of the Limitation Act unlike most criminal proceedings. In In re Nathubhai Brijlal1 it was held that all parties with actual notice of the proceedings under Section 145 were bound by them. That has also been held here in Criminal Revision Case No. 87 of 1917. So that, not merely the actual parties to, but all persons who may be concerned in, the dispute are parties with whom the Magistrate has to deal, the object being to prevent a breach of the peace. So it is not only the actual parties to the order but all parties with notice of the proceedings who are bound. In Rani Sahai V/s. Binode Bihari Ghosh (1923) I.L.R. 45 A. 306 it is distinctly laid down that where the manager of a joint family has taken proceedings under Section 145 as the managing member he and the whole family are bound by the order under it. This seems to be in accordance with reason and commonsense. There, therefore, seems no good reason why, having regard to the authorities cited, we should not hold that under the circumstances the plaintiffs were bound by the notice of these proceedings under Section 145. If all persons are so bound who have had actual notice, though not parties to the order, as laid down in In re Nathubhai Brijlal , and followed in this Court as stated above, it stands to reason that these plaintiffs who admittedly had notice of the proceedings should also be bound. There is the additional reason that their father had acquired the properties as manager of the family on their behalf and it seems only reasonable that the other members of the family should be bound. The plaintiffs must then fail on this point of limitation and the second appeal must be dismissed on that point.

(2.) The next question is whether plaintiffs are entitled to recover compensation from the 1st defendant now represented by respondents 20 and 21. The sale-deed under which the plaintiffs are said to have acquired title to these lands is Ex. A and is recited to be a deed of sale of inam grant land and zeroyati land. The vendor recites that there is a lease on the land in favour of the 2nd defendant for 8 years from 1907 to 1915. The document then goes on: Therefore you shall, subjeet to your continuing the cowle period in favour of the said Varahalu Raju alias Ramabhaddiraraju Garu and subject to your collecting from him in my stead, the cist at the rate of Rs. 75 payable each year, on the 30th of Makha Bahulam, for the four years from the fasli year 1321, according to the instalments settled in the said cowle, take possession of the said land and enjoy the same soon after the expiry of the 30 of Palguna Bahulam of the year Ananda (15 March, 1915), continuing his term until the close of the said cowle period.

(3.) This is said to be a covenant for possession and enjoyment after the period of the lease, but it turned out that the tenant had a right of permanent occupancy and the learned Advocate for the plaintiffs admits that his client was aware of the legal status as an occupancy ryot of the defendant at the time he entered into this transaction Ex. A and he also accepts the finding that he is an occupancy tenant. The District Judge found that the plaintiffs were aware of the nature of the tenure and were therefore not entitled to damages. The Subordinate Judge came to the same conclusion, but he put it on the ground that the plaintiffs had failed to obtain possession by coming to Court too late (i.e., on the point of limitation) ; so that it was their own fault that they failed to obtain possession. The question is, did the plaintiffs fail to get possession owing to the representation of the defendants as contained in Ex. A? It is impossible to say that they did. This part of the case is outside the question of limitation, because being a registered document the plaintiffs have six years within which to sue. It may, of course, be said with reason that the possession that the plaintiff was to get under Ex. A after the expiry of the 2nd defendant's lease was something-different from what he had up to the expiration of that lease. And it is perhaps possible to explain this difference by saying that after its expiry he would have been able to take advantage of the provisions of the Madras Estates Land Act with regard to enhancement of rent and so on. Mahomed Ali Sheriff V/s. Venkatapathi Raju was cited to us for the proposition that mere knowledge on the part of the vendee of a defect in title of the vendor would not by itself defeat the vendee's right on the basis of a covenant implied by the Transfer of Property Act. This is not the only fact in this case, because here the plaintiffs father was not only aware of the state of the defendant's title but knew that the covenant must be entirely ineffective. At the same time it is exceedingly difficult to say especially having regard to the plaintiffs knowledge of the whole state of things at the time he entered into Ex. A that he has been damnified by the fact that after 1915 he has not been able to collect from the tenants more than Rs. 75 per annum, the rate stipulated in the lease of the 2nd defendant, Ex. B. The contract to give him possession and enjoyment has really become unenforceable either because the 2nd defendant has acquired occupancy rights by the enactment of the Madras Estates Land Act or by judicial decision. It seems to me that it would be very difficult for a jury or anybody sitting as a jury to assess any damages or at least anything more than mere nominal damages in favour of the plaintiffs for the breach of this covenant which as a matter of fact their father knew could never be carried out. Under the circumstances 1 am inclined to say that the plaintiffs are not entitled to any damages but at the same time I would give the other side no costs.