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Khanderao Shidramappa Desai Vs. Chanmallappa Shiddappa Torgal - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberAppeal from Order No. 25 of 1923
Judge
Reported inAIR1924Bom364; (1924)26BOMLR364
AppellantKhanderao Shidramappa Desai
RespondentChanmallappa Shiddappa Torgal
DispositionAppeal dismissed
Excerpt:
.....his suit on july 30, 1920. the defendants contended that the suit was barred under article 11 a of the indian limitation act:-;that the suit was instituted quite in time, for when the plaintiff riled it he was entitled under section 15(2) of the indian limitation act to add to the period of limitation the two months' time required for a notice under 8.31 of the bombay court of wards act, and that it made no difference that meanwhile defendants nos. 1 and 2 had ceased to be government wards. - - the suit is either good or badagainst all the defendants......that he was apermanent tenant of defendants nos. 1 and 2. in the year 1916,the plaintiff had filed a suit to recover possession of the suitlands from the sons of his sub-tenant. he succeeded in obtain-ing a decree on december 19, 1917. the decree was confirmedin appeal. meanwhile the sub-tenants handed the land over todefendants nos. 1 and 2, who leased it to defendant no. 3.when the plaintiff filed a darkhast, he was obstructed inobtaining possession by defendant no. 3. so he filed a mis-cellaneous application to get the obstruction removed. defend-ant no. 3 opposed the application which was dismissed on june7, 1919.2. the present suit was filed on july 30, 1923. article 11 a ofthe indian limitation act would apply to the suit. but theplaintiff contends that he is entitled to.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to recover possession ofthe suit lands from three defendants alleging that he was apermanent tenant of defendants Nos. 1 and 2. In the year 1916,the plaintiff had filed a suit to recover possession of the suitlands from the sons of his sub-tenant. He succeeded in obtain-ing a decree on December 19, 1917. The decree was confirmedin appeal. Meanwhile the sub-tenants handed the land over todefendants Nos. 1 and 2, who leased it to defendant No. 3.When the plaintiff filed a Darkhast, he was obstructed inobtaining possession by defendant No. 3. So he filed a mis-cellaneous application to get the obstruction removed. Defend-ant No. 3 opposed the application which was dismissed on June7, 1919.

2. The present suit was filed on July 30, 1923. Article 11 A ofthe Indian Limitation Act would apply to the suit. But theplaintiff contends that he is entitled to include the two monthsrequired to serve notice on defendants Nos. 1 and 2 who wereGovernment wards at the time the cause of action arose. Noticewas given to them under Section 31 of the Court of Wards Act onAugust 20, 1919. So that the period of limitation for filing asuit would be extended to August 7, 1920, under Section 15(2) of theIndian Limitation Act.

3. On May 20, 1920, defendants Nos. 1 and 2 ceased to beGovernment wards. It has been argued that because theyceased to be wards before the suit came on for hearing, thereforethe plaintiff was no longer entitled to add the two months re-quired for giving them notice, to the period of limitationprescribed by Article 11 A. It would seem that the fallacy inthat argument is too apparent to require demonstration. For if it were to succeed, it would follow that if a Government wardagainst whom notice had been served ceased to be a ward afterthe period prescribed by the Indian Limitation Act for filing aparticular suit had expired, but before the additional period oftwo months had expired, then the plaintiff's remedy was gonewithout any fault of his. For when he filed his suit he wasentitled under Scetion 15 to add two months to whatever period wasprescribed for bringing the suit.

4. Then it was suggested that because defendant No. 3 is theprincipal opponent, therefore the suit ought to have beentime-barred as against him although it would have been intime against defendants Nos. 1 and 2. That is a most extra-ordinary suggestion to make. The suit is either good or badagainst all the defendants. If it is in time against defendantsNos. 1 and 2 because plaintiff was entitled to add two monthstaken to give them notice as Government wards, it cannot besaid that it is out of time as against defendant No. 3, becausethe plaintiff could not proceed against defendant No. 3 untilnotice was given. Therefore the order appealed against isright and both the appeals must be dismissed with costs.


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