ANGAD SINGH Vs. BAHADUR SINGH

JUDGEMENT

(1.) THIS is a plaintiffs appeal in a suit brought by certain Hindus for setting aside a sale deed executed by their father. The suit was dismissed by the lower Court on the plea of limitation and counsel have argued this point only before us. It is conceded that the property is still in the possession of the mortgagee and the vendee has never obtained possession. The date of the sale is 27 November 1913, and the suit was brought within 12 years. No doubt the plaintiff was under the impression that Art. 126, Lim. Act, applied to the case. But that article gives the period from which limitation begins to run as being when the alienee takes possession of the property." The view taken by the lower Court and pressed upon us by the respondent is that where the alienee has not taken possession Article 126 cannot apply, and if that article does not apply the only article applicable is 120 which prescribes a period as six years, and in that case the suit would be barred. A similar case came before a Bench of this Court and is reported in Bindeshri Upadhia V/s. Sital Upadhia . The view taken by the Judges was that the article could apply to a case where the alienee gets possession. It is true that a reference is made in the judgment to a decision of the Madras High Court reported in Munia Goundan V/s. Ramasamy Chetty [1918] 41 All. 650 but we have read that judgment very carefully and we do not consider that it can be taken as an authority either for the proposition advanced by the appellant or for that relied upon by the defendant. The only other judgment to which we have been referred and which in our opinion is in point is one of the Punjab Chief Court, Dev Raj v. Shiv Ram [1914] 70 P.R. 1914 where the Judges said: It seems to us clear that to ask for a thing to be set aside implies a prayer for immediate relief, and not for a mere declaration that on the happening of a future contingency certain results will follow.

(2.) IN this case there is no prayer for an immediate relief and if there were it could not be granted because the alienee is not in possession. This must be regarded as a merely declaratory suit and the only article of the Limitation Act which applies is in our opinion Art. 120. The suit therefore was rightly dismissed as being barred by time and we dismiss this appeal with costs.