Thillaikannu Achi vs Sheik Abdul Kadir Rowther

Krishnan Pandalai, J.—The plaintiff''s (petitioner''s) suit brought for damages for breach of the implied covenant of title contained in a sale to

her by the defendant (Ex. A), dated 8th December, 1916, has been dismissed by the learned Judge on the ground of limitation. There is no

question that if this opinion is not correct the petitioner is entitled to a decree. By the sale (Ex. A) the defendant purported to sell to the petitioner

(plaintiff) 4 1/2 cents of land of which from the previous litigation it appears that he gave possession of If cents. For the other 3 cents there were

disputes between herself and her vendor on the one hand and one Subbiah Pillai, the holder of an adjacent land, who claimed it under another title,

on the other. In 1920 two suits were brought, one by Subbiah Pillai against the petitioner''s sons (since tried as O.S. No. 29 of 1921 in the Court

of the District Munsif, Tiruvarur) in which Subbiah Pillai sued to remove the petitioner''s sons from their admitted occupation of a shed (saipu) and

to recover one cent of land on which it stood on the ground that they were mere licensees; and the other brought by this petitioner against Subbiah

Pillai and her vendor (subsequently tried as O.S. No. 168 of 1921 in the same Court) in which the petitioner sought to recover the 3 cents of land

of which she alleged she had been given possession by her vendor but on which Subbiah Pillai had trespassed. The two plots were apparently near

each other. In the result both suits were dismissed on the finding in Subbiah Pillai''s suit that the petitioner and her sons had been occupying the

shed and the land on which it stood in their own right for a long time; and in the petitioner''s suit that Subbiah Pillai had likewise been in occupation

of the 3 cents of land along with some neighbouring land in his own right for a long time. This decision of the District Munsif against the petitioner

was pronounced on 23rd December, 1921, and the decision in appeal confirming it by the learned District Judge of Negapatam on 29th January,

1923. This suit was filed on the 4th January, 1928, when the Court re-opened after Christmas, that is, the last day on which the suit could be

brought if the proper period of limitation is six years and the starting point is taken as 23rd December, 1921. The learned Judge has held that the

suit is barred by limitation on the ground that it falls within the first of the three classes of such suits mentioned by Seshagiri Aiyar, J., in Subbaroya

v. Rajagopala ILR (1914) 38 Mad. 887. He has held that the Article properly applicable is 116. But he has held that the period of limitation begins

to run in this case on the date of the sale deed (Ex. A) and not as contended by the plaintiff on the date of the decision in O.S. No. 168 of 1921,

namely, 23rd December, 1921.

As a result of a series of decisions of this Court of which it is sufficient to refer to Arunachala v. Ramasami ILR (1914) 38 Mad. 1171 : 27

M.L.J. 517, Patrachariar v. Alamelumangai Ammal (1926) 25 L.W. 11 and Sigamani Pandithan Vs. Munibadra Nainar and Others, it cannot be

doubted that the provision of the Limitation Act applicable is Article 116. It was contended that the proper Article is Article 62 or 97, and the

decision in Subbaroya v. Rajagopala ILR (1914) 38 Mad. 887 was relied upon. The facts of that case were different and the grounds of decision

of Seshagiri Aiyar, J., who decided it in the first instance and of the Appeal Bench who confirmed his decision are also not identical. Whereas

Seshagiri Aiyar, J., took the view that Article 116 was applicable to the case, the Bench who heard the appeal confirmed his decision on the

ground stated by Miller, J., in Ramanatha Aiyar v. Ozhaloor Pathirisseri Raman Nambudripad (1913) 14 M.L.T. 524 that the proper Article to be

applied was 97. That was perhaps appropriate to the facts there which were that the plaintiff got possession under a sale deed and remained in

possession until evicted in 1911 and the want of title was established by litigation which ended in 1918. In these circumstances it was held that the

case can be properly described as one for money paid on an existing consideration which afterwards failed when the litigation ended.

In Arunachala v. Ramasami ILR (1914) 38 Mad. 1171 : 27 M.L.J. 517 the plaintiff who took a sale deed in 1904 was unable to get possession

at all and brought the suit in 1910, but was unable to get it. The question was whether the plaintiff could recover the money paid. It was held by a

Bench after a full examination of the authorities that the proper Article to be applied is 116. That decision applies to this case.

The next point is when does the period begin to run. According to the Article it begins to run when the contract is broken. As to this in the facts

of this case I find it impossible to agree with the learned Judge that this case falls within the first of the three classes mentioned by Seshagiri Aiyar,

J., in Subbaroya v. Rajagopala ILR (1914) 38 Mad. 887. If it is necessary to adopt the classification mentioned by the learned Judge it appears to

me that this is a case falling within his class (c) ""where though the title is known to be imperfect the contract is in part carried out by giving

possession of the properties"". The first class is where there was no title to convey and the vendee has not been put in possession either. In the

present case, out of 4 1/2 cents of land the plaintiff did get possession of 1 1/2 cents and had to sue only for the rest, and that appears to be what

the learned Judge intended in his class (c). However that may be, there is authority for saying that even in cases where the purchaser is unable to

get possession and has to litigate against third parties in order to get it, the contract is broken, not always, and in all cases necessarily, on the date

of the sale deed, but at the earliest date when a Court decides that the vendor has no title. It is not uncommon for vendors out of possession to sell

their lands and if the parties knowing that immediate possession cannot be given and may have to be obtained by a suit against a third party agreed

to these terms, there is no reason to think that the contract is immediately broken if possession is not immediately given. In such a case the contract

can reasonably be said to be broken only when it is found as a result of the suit against the stranger known to be in possession that the vendor has

no title. Sigamani Pandithan Vs. Munibadra Nainar and Others, was a case of that character. The plaintiff to whom the whole of some property

was sold but was not given possession was able to get possession of only one-half of it after a suit and it was held by Devadoss, J., in that case

that the Article of limitation applicable is Article 116, and also that the period of limitation begins to run on the date when the Court first held that

the vendor had no title to the half of which the plaintiff was refused possession. For this the authority relied upon was the decision of the Privy

Council in (1919) ILR 46 670 (Privy Council) . Applying this to the present case it seems to me that the breach should not be held to have

occurred on the date of the sale deed as held by the learned Judge. Apparently both the vendor and the purchaser were in the belief that the 3

cents for which the suit had to be brought were in the hands of Subbiah Pillai and would be recovered from him, and though the vendor and the

purchaser did appear on the opposite side in the Court it cannot be denied that, at any rate, as far as the title to the land was concerned, they were

both supporting the same case; and it was only when the suit was dismissed that it can reasonably be said, in the facts of this case, that the contract

was broken. I therefore think that the better view is that the starting point of limitation in this case must be taken as the date of the decision already

mentioned, namely, 23rd December, 1921. If so, the suit was not barred.

In that view the sum of Rupees One Hundred was clearly due, and there will be a decree for that amount with proportionate costs in both

Courts.