Shahul Hameed Rowther vs Nainamohamed Rowther

C.A. Vaidialingam, J.—In this second appeal, Mr. T.N. Sundara Iyer, Learned Counsel for the plaintiff-appellant, challenges the view of both the subordinate courts, that the plaintiff''s claim is barred by limitation under Article 97 of the Limitation Act. So far as the facts are concerned, there is no controversy at all. The plaintiff admittedly took a lease of the property from the defendant under Ext. P. 1 dated 18-9-1120 for one year. The terms of the lease appear to be that the plaintiff is to pay a rent of 82 paras annually to the defendant and the plaintiff also paid a sum of Rs. 100/- as premium for the lease executed in his favour.

The plaintiff got possession of the property on the basis of this lease deed. A third party, namely, one Mohammad Ismail Rawther, filed two suits, O.S. No. 93 of 1950 against both the plaintiff and the defendant for realising the pattom for the years 1123 to 1125 and also another suit, O.S. 102 of 1951 against both the plaintiff and the defendant for recovery of arrears of pattom for 1126 as also for recovery of possession.

The main allegation of Muhammad Ismail Rawther appears to have been that the defendant herein had no title to the property and had no right to lease it in favour of the plaintiff in this litigation. The two suits were tried jointly and there was ultimately a decree for recovery of arrears of pattom from 1123 to 1126 and also for possession of the property.

There were appeals by both parties against these decrees and the appeals were also ultimately dismissed. The original suits themselves were decreed on 10-7-1952 and the plaintiff herein deposited a sum of Rs. 575/- in order to enable him to continue in possession pending an appeal that he had filed against the decree in the suit. There was also another deposit of Rs. 72-4-0 by the said Rawther representing the cost of the seed, etc. used for raising the crop on the land. These amounts were ultimately drawn by the said Rawther on 7-6-56 and notwithstanding the fact that the plaintiff attempted to get a stay of delivery of the properties, the said Rawther, namely, the plaintiff decree holder, actually got possession of the property on 11-9-1952 as will be seen from Ext. P. 15.

The present suit was filed by the plaintiff on 26-5-1956 for recovery from the defendant: (a) of a sum of Rs. 100/- paid as premium under Ext.P.1; (b) a sum of Rs. 515/- deposited by him and drawn by the said Rawther; (c) a sum of Rs. 72-4-0 which was also deposited in court and later drawn by Rawther and (d) a sum of Rs. 100/- by way of damages for the loss caused to the plaintiff.

The trial court and the appellate court, have agreed in coming to the conclusion that the plaintiff is not entitled to get a decree for a sum of Rs. 100/- claimed by him for the loss of crops in view of Kunhammad Ismail Rawther taking possession of the property. So far as the other three claims are concerned, on facts, at any rate, both the courts overruling the various objections raised by the defendant were inclined to give a decree in favour of the plaintiff if the suit was otherwise in time.

The suit was decided on other grounds, no doubt, but all that is not now material because the only plea that has found favour with both the lower courts is the plea of limitation raised before them. The trial court and the appellate court have now come to the conclusion that though the plaintiff may be entitled to claim those three heads of amounts, the suit, inasmuch as it has been instituted beyond the term of three years either from the date of decree in O.S. No. 95 of 1950, namely, 10-7-1952 or beyond the period of three years from the date when Rawther got delivery, namely, 11-9-1952, is barred by limitation.

It is this view of both the subordinate courts that has been attacked before me by Mr. T.N. Sundara Iyer, Learned Counsel for the appellant. No doubt, in the lower courts it is seen that the appellant appears to have relied upon Articles 61 and 83 or in the alternative 120 of the Limitation Act as being applicable to the particular circumstances of this case and it is that aspect that has been considered by the subordinate courts and overruling the contentions raised in that behalf by the appellant the view taken is that Article 97 of the Limitation Act applies to the case on hand.

But in this Court before me Mr. T.N. Sundara Iyer, Learned Counsel for the appellant, has made a slightly different approach to the question of limitation. The Learned Counsel did not rely upon the other three Articles referred to above, but according to him, the proper Article that is applicable to the case on hand is Article 116 of the Limitation Act to the effect:

For compensation for the breach of a contract in writing registered.

Six years

When the period of limitation would begin to run against a suit brought on a similar contract not registered.

Learned Counsel urges that in this case there is a contract in writing evidenced by Ext. P. 1 and in that document though there may not be specific recitals to that effect still as landlord the defendant was bound to safeguard the possession of the plaintiff and that is part of the implied terms of the agreement u/s 108 of the Transfer of Property Act and inasmuch as there has been a breach in this case of that condition it is Article 116 that applies to this case. No doubt, the Learned Counsel drew my attention to some of the decisions of the Patna High Court in Nabin Chandra Ganguli Vs. Munshi Mander and Others, ; Rajendra Narayan v. Lalmohan ( AIR 1946 Pat 462); Debi Prasad Agarwala Vs. Haji Syed Mehdi Hasan and Others, which may give some support to the contention of the Learned Counsel that even in the absence of any express covenant in a document registered, if an implied covenant can be read into that under the provisions of the Transfer of Property Act, the proper Article applicable is 116 of the Limitation Act.

But this view, on the other hand, is not adopted in toto by the later decisions of the Patna High Court as will be seen from the decisions reported in Dhani Sahu and Others Vs. Bishun Prasad Singh and Others, and Rai Sital v. Mt. Shampati ( AIR 1958 Pat 1). There are also decisions of the Madras High Court reported in Sri Raja Velugoti Sarvagna Kumara Krishna Yachandra Bahadur Garu, Rajah of Venkatagiri and Others Vs. Sri Rajah Sobhanadri Appa Rao Bahadur, Zamindar Garu and Another, and Murugappa v. Arunachala ( AIR 1949 Mad 638) to the effect that in these circumstances it is Article 97 of the Limitation Act that applies.

Therefore, in my view the reasoning of both the subordinate courts that it is really Article 97 of the Limitation Act that applies is correct. No doubt, it has been observed by both the subordinate courts that the period of limitation may be considered to start even from the date of the decree in O.S. 93 of 1950, i.e. 10-7-1952. This may not be correct because the period under column 3 of Article 97 will strictly arise only from the date of dispossession of the plaintiff which took place when Rawther took delivery of the properties as evidenced by Ext. P. 15 on 11-9-1952. This is enough to conclude the case as against the plaintiff so far as at any rate Rs. 100/- claimed as refund of premium is concerned.

So far as the claim regarding the payment of Rs. 575/- deposited by the plaintiff and withdrawn by Rawther on 7-6-1956 as also the amount of Rs. 72-4-0 deposited no doubt by Rawther, and later on drawn by him on 7-6-1956, Learned Counsel Mr. T.N. Sundara Iyer urged that at any rate so far as these two claims are concerned, Article 97 will not apply and even applying Article 97 the suit is within time because the suit has been filed within three years from 7-6-1956. Even here there is difficulty to accept the contention of the Learned Counsel. It should be remembered that the claim of the plaintiff cannot be cut up in this manner because his claim itself is for damages caused to him practically by his not having had the benefits of the lease executed in his favour by the defendant and according to him he had already paid the lease amount for the period covered by this amount to the defendant in this case. In such circumstances, in my view, the cause of action for the plaintiff will arise for recovery of the amounts that may have been paid by him to the defendant also from 11-9-1952, the date of dispossession of the plaintiff from the property. The fact that the plaintiff deposited the amount on 15-9-1952 for getting if possible a stay from the appellate court as against the decree that has been passed against him or that it was drawn by Rawther on 7-6-1956, in my opinion, is totally irrelevant for considering the question of limitation. In the result, the second appeal fails and is dismissed. There will be no order as to costs. No leave.