1. In our opinion the suit is clearly time-barred. Adopting the view of the lower Court, and that is admittedly the view most favourable to the plaintiff, that the suit is governed by Article 97, we should still be as sure that it was time-barred.
2. The admitted facts are that this agreement, whatever its true nature may have been, was entered into between the plaintiff and the defendant No. 1 in September 1908. Adopting, again, the plaintiff's case, the agreement was of this nature. The plaintiff had paid the defendant the money which he now seeks to recover in consideration of the defendant procuring for the plaintiff a reconveyance of certain property which had been sold under a Court decree in 1904. The nominal purchaser at that Court-sale was the defendant No. 2, and the plaintiff's case is that the defendant No. 1 was the real purchaser, the defendant No. 2 being only his creature. That being the nature of the agreement, it is common ground that the defendant No. 1 did not procure a conveyance to the plaintiff from the defendant No. but that in November 1908 the defendant No. 2 conveyed the property to an outsider called Vithal Narhar. The defendant's case was that Vithal Narhar was merely a benamidar for the plaintiff. If that case were true, then the defendant would have fulfilled his obligation and the present claim would have no foundation whatever. That part of the defendant's case has been disbelieved by the Courts below and we accept their view. The position then is that the defendant No. 1 having contracted with the plaintiff, for a price, to procure from the defendant No. 2 a reconveyance of certain property to the plaintiff in September 1908, the defendant No. 2 conveys that property in November 1908 to Vithal Narhar. These facts were all known to the plaintiff who almost immediately prosecuted the defendant No. 1 for cheating in respect of this transaction. That complaint was started in December 1908. It is, therefore, quite clear that if the suit falls under any of those Articles upon which the defendant No. 1, appellant here, relies, it must time-barred. It is equally clear that it must be time-barred if the suit falls under the Article-and the only Article-upon which the plaintiff-respondent relies. The Courts below have viewed the continuance of the plaintiff's possession between September 1908 and the 22nd of July 1911 when Vithal Narhar took possession as an existing consideration for the contract of September 1908. But, on the facts we have stated, this is clearly wrong. The moment there was a conveyance to Vithal Narhar, whatever possession the plaintiff was allowed to retain, must have been on sufferance and by the grace of Vithal Narhar. The defendant No. 1 could have had nothing to do with it. Nor could that be regarded as consideration flowing from him, and the plaintiff must have been perfectly aware of that fact.
3. In whatever light, then, this transaction be regarded, we have no hesitation in saying that the conclusion arrived at by the lower appellate Court on the issue of limitation was wrong. The present suit is time-barred and must be dismissed with costs throughout.