N. Venkataramier and Another vs Vaithilinga Thambiran The Dakshinam Karwar and Agent of Ambalavana Pandara Sannadhi

Miller, J.—This was a suit instituted u/s 213 of the Estates Land Act before a Deputy Collector decreed by him and dismissed by the

District Judge on appeal. A preliminary objection is taken that no appeal lies to the High Court from the decree of the District Judge, and is based

on a contention that Section 192 applies the provisions of the CPC only to the procedure in proceedings authorised by the Act, and not so as to

give an appeal which the Act does, not give.

In my opinion, this objection must fail, The language of section ]92 of the Act does not support it, and there are two cases under the repealed

Rent Recovery Act of 1865 which point the other way. Ganne Kotappa v. Venkataramiah (1890)10 M.L.J., 398 and Veeraswamy v. Manager,

Pittapur Estate I.L.R., (1903) Mad., 518.

Reliance was placed on the recent case in the Privy Council Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon I.L.R., (1913) Calc., 21,

in which their Lordships held that no appeal lies as of right to His Majesty from a decision of the Chief Court of Lower Burma confirming the

award of a Collector under the Land Acquisition Act in the town of Rangoon.

That case seems to have turned on the question whether the decision was a decree or order of the Chief Court, and the Privy Council, as I

understand the case, held that it was not a decree or order within the meaning of Section 109, Civil Procedure Code, but was in the nature of an

award. This case therefore does not help the respondent. In the present case the District Judge''s decision is embodied in a decree, and he was

sitting in appeal. The provisions of Chapter XLII of the Code of 1882 are by Section 192 made applicable to the matter, and, as I have said, we

cannot strike out those provisions which give the right of appeal and retain merely those which prescribe in what manner an appeal is to be heard

and determined. It is not denied that the corresponding provisions of the present CPC apply where the old Code applied, and the preliminary

objection therefore fails. I have dealt with it, as it was fully and ably argued for the respondent, but in my view the decision of the District Judge is

right.

He held that the suit u/s 213 of the Estates Land Act is barred by limitation not having been instituted within three months of the cause of action.

In the appeal as argued before us, the decision is attacked on the ground that the plaintiffs had a continuing cause of action for the detention of his

property until he paid the money demanded and released it, and that was within three months of the institution of the suit. The weight of authority in

this Court is against the contention; the appellant may be said to receive some support from Yamuna Bai Rani Sahiba v. Solayya Kavundan I.L.R.,

(1901) Mad., 339, but that case is distinguished in Pamu Sanyasi v. Zamindav of Jayapur I.L.R.,(1902) Mad., 540, and Raja of Venkatagiri v.

Isakapalli Subbiah I.L.R., (1903) Mad., 410 is undoubtedly an authority against him. Ram Narain v. Umrao Singh I.L.R., (1907) All., 615

contains a dictum which supports the respondent. The present in not a case in which an order to restore the property had been made and the

damages accrued owing to disobedience to the order, and I agree with the view taken in Pamu Sanyasi v. Zamindar of Jayapur I.L.R.,(1902)

Mad., 540, that, where the proceedings which give rise to the cause of action consists in the wrongful distraint that distraint is not a continuing

wrong, though no doubt the injury continues; and, not being a continuing wrong, it will not give rise to a continuing cause of action u/s 23 of the

Limitation Act. In England the question what is a continuing cause of action seams to have arisen principally in regard to the point of time up to

which damages can be assessed in any given action; and then a continuing cause of action has been defined as involving a repetition of acts or

omissions of the same kind as that for which the action was brought; Hole v. Chard Union (1894) 1 Ch., 293.

That definition, if it can be used as a guide to a definition of a continuing wrong, does not help the appellant.

It seems to me that difficulties surround the case which the appellant urges upon us, and that we are on safar ground if we follow the authorities

in this Court.

The appellant presented an alternative case thus: the claim is for return of the money paid by the plaintiffs to save their property from sale; such a

suit is not cognizable by a Deputy Collector. Therefore the suit is not competent and he should dismiss it on that ground, leaving the plaintiffs to

their rights in a Civil Court.

The answer is that this suit is not for recovery of the money paid; it is a suit for damages u/s 213 of the Estates Land Act and, if it bases a suit

for the money in the Civil Court, that was for the plaintiffs to consider when they instituted it. They have not asked to be allowed to withdraw it. I

need not deal with the other questions raised, as in my opinion the appeal must be dismissed with costs on the question of limitation.

Tyabji, J.

It seems to me that Section 192 of the Madras Instates Land Act allows in this case an appeal to the High Court. Rangoon Botatoung

Company, Ltd. v. The Collector, Rangoon I.L.R., (1913) Calc. 21, seems to me to be distinguishable. It was decided in that case that no appeal

lay to the Privy Council from an award under the Land Acquisition Act, as such an award was not, decree within the terms of Section 109 of the

Civil Procedure Code, 1908 (Section 595 of the Act of 1882). Here we have a decree, which seems to me to fall under the terms of that section.

On the point whether the suit as framed is barred, I agree that it is. The plaint proceeds on the basis that the cause of action arose (within the

meaning of Article 21 of Part A of the schedule to the Estates Land Act) when the plaintiff was served with the notice u/s 95 of the said Act.

Receiving such notice would in itself cause no damage, for which alone a suit u/s 213 lies. The only other alternative on the allegations in the plaint

seems to be that the cause of action in respect of which this suit is brought, arose on the date of the distraint. The payment made by the plaintiff

after notice u/s 95 is not alleged in the plaint as giving rise (either by itself or in combination with the distraint) to the cause of action. The payment is

referred to merely for assessing the damages claimed. It was suggested (though not admitted) in argument that rent was actually due, and that this

was the reason why the plaintiff did not wish the question of the payment to be raised in the suit. It was also argued that a suit on the payment

would lie in a Civil Court, not before the Collector. But what over his reasons the plaintiff did not frame his suit on the basis that the payment

constituted a part, or the whole, of the cause of action. In Pamu Sanyasi v. Zamindar of Jayapur I.L.R., (1902) Mad., 540, it was held that

continuance of a distraint wrongfully made was not in itself a continuing wrong distinguishing Yamuna Bai Rani Sahiba v. Solayya Kavundan I.L.R.,

(1901) Mad., 339 (whore the detention continued after the attachment had been sat aside). See also Raja of Venkatagiri v. Isakapalli Subbiah

I.L.R., (1903) Mad., 410. The plaint before us however makes no allusion to any continuing wrong.

If my view of the effect of the plaint in right the only cause of action shown in the plaint, if any in shown, is the distraint, and time must be taken

to run from then. The suit is therefore barred and the appeal must be dismissed with costs.

The first point is dealt with in the Privy Council Case of Ravi Veeraraghavulu v. Venkata Narasimhu Naidu Bahadur I.L.R., (1914) Mad., 443

.