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1946 Supreme(Nagpur) 15
HIGH COURT OF NAGPUR
VISHWANATH NARAYAN AND ANR – Appellant
Versus
DEOKABAI – Respondent
Decided on : 26-02-1946
The main legal point established in the judgment is the interpretation of Section 65, Contract Act and the application of limitation to the plaintiff's claim for possession.
Headnote:
Contract Act - Interpretation of Section 65, Contract Act - Section 48, T.P. Act - Article 47, Limitation Act - Section 145, Criminal P.C. - Section 55(6)(b), T.P. Act - Failure of Consideration - Possession - Cause of Action
Fact of the Case:
The plaintiff sold a property with a condition of repurchase. The defendant, the son of the seller, claimed rights over the property. Legal proceedings ensued, and the plaintiff filed a suit for possession and mesne profits. The trial court decreed in favor of the plaintiff, but the appellate court dismissed the suit. The plaintiff then filed a second suit, claiming a decree for the amount paid for the property.
Finding of the Court:
The court found that the plaintiff's claim for the amount paid for the property was not valid as the contract did not become void under Section 65, Contract Act. The court also held that the plaintiff's claim for possession was barred by limitation, and he had failed to enforce his title within the specified time.
Issues: Interpretation of Section 65, Contract Act - Validity of plaintiff's claim for the amount paid for the property - Limitation of plaintiff's claim for possession
Ratio Decidendi: The court interpreted Section 65, Contract Act and held that the plaintiff's claim for the amount paid for the property was not valid. The court also found that the plaintiff's claim for possession was barred by limitation as he had failed to enforce his title within the specified time.
Final Decision: The court set aside the decree appealed against and dismissed the plaintiff's suit. The defendants were found to have colluded to deprive the plaintiff of his claim, and the parties were ordered to bear costs in all the Courts as incurred.
1. This is a Letters Patent appeal by the defendants against the judgment dated 7-11-1940 passed by Gruer, J. in second Appeal No. 108 of 1938.
2. The case out of which this appeal arises has a chequered history. The claim of the plaintiff was decreed by the trial Court, set aside in first appeal and was again decreed in second appeal.
3. The relevant facts in the case are as follows: Appellant 1, Vishwanath is the son of appellant 2, Narayan. Vishwanath was the owner of survey No. 142/3 of Mauza Surji alias Peth Mohommad Nagar, Taluq Daryapur which was inherited by him from his mother. His title to the property was not disputed before us. Vishwanath sold the field to Sampatlal, the plaintiff, on 26-6-1929 for Rs. 1000 (EX. P-3). The sale was one with a condition of repurchase: the vendee was to reconvey the property to Vishwanath if he paid Rs. 1000 to him on 31-1-1930.
On 13-7-1929 Vishwanath executed a deed of relinquishment (Ex. P-4) in favour of his father Narayan under which he relinquished his rights in his property inclusive of the plot in dispute. There was however no formal deed of transfer conveying the property or the field in dispute to Narayan. Under Section 48, T.P. Act, the title of the plaintiff derived under a prior sale deed prevailed over the title of defendant 2 which was based on the relinquishment which was later in point of time.
4. There were proceedings under Section 145, Criminal P.C., against Narayan, defendant 2 and Sampatlal, the plaintiff (Misc. criminal case No. 21 of 1930). The Sub-Divisional Magistrate, Ellichpur, held that Narayan was all along in possession of the plot in dispute and passed an order in his favour on 3-11-1930 under Section 145(6), Criminal P.C., forbidding all disturbance till he was evicted in due course of law by a civil Court (Ex. P-1). Under Article 47, Limitation Act, Sampatlal was bound to sue for possession within three years from 3-11-1930 the date of the order passed by the Sub-Divisional Magistrate against him under Section 145(6), Criminal P.C. This was however not done.
5. Sampatlal filed civil Suit No. 70A of 1934 against Narayan in the Court of the Additional Subordinate Judge, 2nd Class, Daryapur, for possession of the plot and mesne profits for three years. This suit was dismissed as barred by limitation on 21-9-1934: (Exhibit p-2). Thereupon the plaintiff filed civil Suit No. 130A of 1936 on 26-9-1936 against Vishwanath and his father in the Court of the 2nd Class, Subordinate Judge, Daryapur, and claimed a decree for Rs. 1000 against them. In para. 2 of the plaint he stated that he had a charge under Section 55(6)(b), T.P. Act, on the property in suit for Rs. 1000, the amount of consideration paid by him. In the alternative he pleaded in para. 3 that the deed dated 29-6-1929 was a mortgage by conditional sale and that the plaintiff was entitled to a decree for foreclosure of the property. In para. 4 he stated that defendant 1 was liable for the claim of Rs. 1000 either by way of damages or for failure of consideration because his title was found to be defective and the plaintiff's possession was obstructed.
6. On these allegations he claimed reliefs in the alternative: (1) for a decree for Rs. 1000 in enforcement of the charge under Section 55(6)(b), T.P. Act, or (2) for a decree for foreclosure in case the amount was not paid, or (3) for a decree for Rs. 1000 against defendant 1 if the reliefs (1) and (2) were not granted. The defendants filed separate written statements and denied the claim. It is not necessary for the purpose of the decision of this appeal to set out their defence.
7. The Court of the Subordinate Judge, Second Class, Daryapur, passed a decree on 30-4-1937 for Rs. 1000 with interest at 6 p.c.p.a. from 29-6-1939 till realisation. The Court of the Additional District Judge, Daryapur, in civil Appeal No. 21-A of 1937 by the decree dated 30-11-1937 allowed the appeal and dismissed the plaintiff's suit. This decree was set aside and the decre
