1931 Supreme(Nagpur) 58

NAGPUR JUDICIAL COMMISSIONERS COURT
Jackson, Subhedar, Niyogi
KASHIRAO – Appellant
Versus
ZABU – Respondent
Civil Revision No. 105 of 1930
Decided on : 16-09-1931

The main legal point established in the judgment is that the limitation for a suit for damages for breach of covenant of title begins to run from the date of dispossession of the vendee by the rightful owner, even in cases where the sale is void ab initio and possession of the property is delivered to the vendee.

Headnote:

Subhedar—The facts of this case are shortly these: On 22nd February 1918 Zabu, the defendant-non-applicant, acting for himself and for his minor brother Shanker executed a sale deed in respect of 8 acres of land for Rs. 1,000, in favour of the plaintiffs-applicants and placed them in possession of the property. The vendor had a third brother Amruta who on 31st October 1925, secured, in Suit No. 185 of 1924, a decree for joint possession to the extent of a moiety in 8 acres conveyed to the plaintiffs and in April 1928 he got possession of the 4 acres pertaining to his share. In his first decree Amruta was however made to contribute Rs. 322-12-0 as it was held that he had derived benefit from the consideration of the sale on account of the purchase of some other laud by the vendors. 2. On 24th June 1929 the plaintiff instituted a suit against their original vendor, the defendant, to recover Rs. 700, as damages for failure of consideration in respect of the sale transaction of the year 1918. The cause of action was stated to have accrued in 1928 when the plaintiffs lost possession of the moiety of the land conveyed. The suit was principally resisted on the ground that the claim was barred by time and following Pirbhu v. Mt. Wazirbi,1915 11 NLR 186 , the Small Cause Court dismissed the suit. The plaintiffs have therefore come up to this. Court in revision. 3. It is conceded that the facts of the present case are almost identical with those of the above ruling; but it is contended that the law laid down there was incorrect and should be reviewed in the light of the following latest rulings on the point: Subaroya v. Rajagopala, 1915 AIR(Mad) 708, Arunachala v. T. Ramasami, 1915 AIR(Mad) 742 Sankara Variar v. Umer,1923 AIR(Mad) 46, Multanmal v. Budhumal, 1921 AIR(Bom) 252 and Jai Indra Bahadur Singh v. Khairati Lal,1928 AIR(Oudh) 465. Reference was also made to Ma Hnit v. Fatima Bibi, 1927 AIR(PC) 99 . But this last case and Sankara Variar v. Umer,1923 AIR(Mad) 46, were with reference to Art. 97 and not Art. 116 of the Limitation schedule which admittedly is applicable to the present case. In Bahadur Lal v. Jadhao,1906 2 NLR 174 it was conceded that limitation in such cases begins to run from the date of dispossession. 4. Personally I feel very much impressed by the reasonings adopted in the cases cited for the applicants which lay down that under Art. 116, Limitation Act time would begin to run even where the sale is void ab initio and possession of the property is delivered to the vendee not from the execution of the sale deed but from the date of his subsequent dispossession by the rightful owner. I therefore refer the following question for the decision of a Bench of this Court: What is the starting point of limitation under Art. 116, Sch. 1, Lim. Act, in a suit for damages for breach of covenant of title, contained in a registered deed, in a case in which the vendee has been put in possession of the property by the vendor, and the sale is void ab initio as against the rightful owner; whether from the date of the sale or from the date of dispossession of the vendee by the rightful owner ?

Fact of the Case:

On 22nd February 1918, Zabu and his minor brother Shanker executed a sale deed for 8 acres of land in favor of the plaintiffs and placed them in possession. In 1928, the plaintiffs lost possession and sued the original vendor for damages for failure of consideration. The Small Cause Court dismissed the suit, leading the plaintiffs to seek revision.

Finding of the Court:

The court found that the limitation for a suit for damages for breach of covenant of title begins to run from the date of dispossession of the vendee by the rightful owner, even in cases where the sale is void ab initio and possession of the property is delivered to the vendee.

Issues: The main issue was the starting point of limitation under Art. 116, Sch. 1, Lim. Act, in a suit for damages for breach of covenant of title in a case where the vendee has been put in possession of the property by the vendor and the sale is void ab initio as against the rightful owner.

Ratio Decidendi: The court held that the limitation begins to run from the date of dispossession of the vendee by the rightful owner, even in cases where the sale is void ab initio and possession of the property is delivered to the vendee.

Final Decision: The court decided that the limitation for a suit for damages for breach of covenant of title begins to run from the date of dispossession of the vendee by the rightful owner.