(Badakara) Krishna Bhatta vs Govinda Bhatta

Ananthakrishna Ayyar, J.—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.

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.

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.

The learned advocate for the appellant, however, raised two further, but new, points in the second appeal; the first is that the present suit is

barred by the provisions of Order 2, Rule 2, Civil P.C., because it was alleged that the present claim should have been, but was not, included in

the prior suit No. 458 of 1920. This point was not raised in either of the lower Courts. The plaint in the former suit, which would be necessary to

see what exactly was the cause of action alleged in that case, has not been filed. That being so, I feel myself unable to entertain this plea, though it

has been raised in the grounds of the second appeal.

The other new point raised by the learned advocate for the appellant is this, namely, that the prior decision of the appellate Court in the first of

the two suits really suggested that the sale-deed to the plaintiff was a sham transaction; and in support of this plea he referred me to the

observations in para. 7 of the appellate judgment, Ex. D, to the effect that the sale under Ex. A was also a sham transaction. The difficulty in the

way of entertaining this new point at this stage is that the same has not been taken in the written statement of the defendant in the present suit; nor

has any issue been raised on the point. Further this question has not been, as far as I am able to see, discussed in this light by either of the lower

Courts. If it is to be taken that this question was res judicata having regard to the finding of the lower appellate Court in the prior litigation, there is

again this fact that there is no plea of res judicata raised in either of the lower Courts in this case.

For these reasons, I am unable to give effect to the new points raised here by the learned advocate for the appellant,, and consequently I dismiss

the second appeal with costs.