JUDGMENT

Roy, J. - This is an application by the Defendant u/s 115 of the CPC to revise an order dated 8-12-1953 passed by the Civil Judge of Tehri by which he allowed the Plaintiff's appeal and decreed his suit for a sum of Rs. 400/ - against Smt. Thagni alias Thaguli, Defendant No. 1.

2. It appears that on 7-1-1944 a Khaikari deed was executed by Smt. Thagni in favour of Indramani in respect of land assessed to certain amount as revenue, and a sum of Rs. 400/ - paid as consideration of the deed. Indramani was the deceased father of the Plaintiff. One Narain Dutt was the co-sharer in the land on which the khaikari was created. He brought a suit for cancellation of the deed aforesaid in the court of the Civil Judge of Lansdowne. The suit was decreed ex-parte on 2-2-1948. Indramani's application to set aside the ex-parte decree was disallowed. Indramani then preferred an appeal against that order. By an order dated 4-5-1951 the learned Additional District Judge held that the appeal had abated as Indramani died during the pendency of the appeal and his legal representatives did not come forward within time to be substituted on the record. Narain Dutt put the decree into execution and obtained possession of the khaikari land on 1-1-1952. Thereafter the present suit was filed on 19-1-1952 for the money paid upon an existing consideration which afterwards failed. The Defendant pleaded that the suit was time-barred. The trial court gave effect to that plea holding that under Article 97 of the Limitation Act time began to run from the date of the deed, namely, 7-1-1944 which was the date of the failure to pay consideration. The trial court, therefore, dismissed the suit. An appeal was preferred against that decision. The lower appellate court held that although Article 97 of the Limitation Act was applicable to the case time began to run from 1-1-1952 when possession was obtained by Narain Dutt. Upon that finding the appeal was allowed and a decree in the sum of Rs. 400/ - was passed against Smt. Thagni.

3. Before we proceed to consider the question of limitation, which is the only point raised in revision, it would be necessary to quote a passage from the Manual of I and Tenures of Kumaon Division by V.A. Stowell, (1928 edition), regarding Khaikari rights. The passage is as follows:

A source of difficulty with regard to these registered leases is often found in cases where one or more owners of unpartitioned land purport to create khaikari right in their share of land. This they cannot do, unless their share is admittedly held in the shape of specific separate land and the other co sharers agree to the transaction. This is not infrequently the case; it is found in partition that one or more of the parties have admittedly given khaikari rights in part of the common land and are, by agreement allotted such portions of the land in lieu of part of their share of khudkasht. But if the other joint hissedar objects, such giving of khaikari rights is ultra vires.

4. In construing this passage in the light of the circumstances of the present case the lower appellate court observed:

The above paragraph means that khaikari right in unpartitioned land can be made when the share is admittedly held in the share of separate land and the other co-sharers agree to the transaction. In the present case it is an established fact that the Defendant No. 1 was in separate and exclusive possession of the land when she executed the khaikari deed. There is, however, nothing to show if the other co-sharers, namely, Defendant No. 2 agreed to the transaction. I, however, remains that after some years he challenged it. Evidently, it would have remained a perfectly valid transaction if it had not been avoided by him. It necessarily leads to the conclusion that the transaction was not void but voidable. It was thrown out when the person entitled to get it annulled, chose it to do so.

After making that observation the lower appellate court came to the conclusion that the