1. This second appeal arises out of a suit instituted by the appellants and their father, Ramabrahmam, who has since died. The suit was for damages for breach of the covenants of title and quiet enjoyment in respect of a piece of land of the extent of 60 cents. There was an exchange deed dated 2-4-1924 whereunder Ramahrahunan, the father of the appellants obtained from the defendant Ac. 1-81 cents in Revision Survey Nos. 675 and 678 plus an amount of Rs. 600/- in exchange for Ac. 15-7 cents in Revision Survey No. 230. Under the deed, there was a covenant for title as well as one for quiet enjoyment.
Ever since, each of the parties to the exchange deed was in possession till the year 1929 when one of Ramabrahmam's daughter who was also the defendant's sister's daughter filed O. S. No. 79 of 1929 against the defendant as well as Ramabrahmam claiming title to 20 cents out of Ac. 1-81 cents obtained by the latter under the exchange. Her claim was based on the ground that it was her deceased mother's stridhanam property. Her suit was dismissed in the first court; but on appeal she succeeded in getting a decree for partition and separate possession of the 20 cents of land claimed by her. The date of the decree of the appellate Court is 27-7-1936. There was a second appeal to the Madras High Court by the present defendant, but that was dismissed on 5-10-1938.
Another daughter of Ramabrahmam instituted a similar suit number as O. S. No. 508 of 1934 and obtained a decree for partition and separate possession of 40 cents of the suit land out of the aforesaid extent of Ac. 1-81 cents. The decree in that suit was passed on 6-12-1939. An appeal taken against that decision was dismissed on 15-9-1942. According to the averment in the plaint in the present suit when his daughters were about to enforce the decrees for partition which they had obtained, Ramabrahmam settled their claims by paying them a sum of Rs. 600/- under a registered deed (Ex. P-5) of settlement dated 8-9-1943.
The plaint also says that he had paid certain sums to them by way of mesne profits, too. The present suit was instituted on 17-4-1946 and seeks recovery of the sum of Rs. 1,599-10-11 which is stated to be the grand total of the sums he had expended for maintaining his possession of the 60 cents in regard to which his daughters had obtained decrees against him. The first Court decreed the claim in so far as it related to the 40 cents but dismissed the claim in regard to the 20 cents on the ground that it was barred by limitation. Against that decree, the present appellants filed an appeal to the District Court, West Godavari, while the defendant presented a memorandum of cross-objections. The learned District Judge held that the claims for damages in regard to both the items of land were barred by limitation and dismissing the appeal allowed the cross-objections.
2. The first question therefore for determination in this appeal is as to whether the claim in respect of damages in regard to either item is barred by time. The learned District Judge held that so far as the covenant for title is concerned, it was broken in regard to the 20 cents of land involved in O. S. No. 79 of 1929 on 27-7-1936, the date of the decree of the first appellate Court, and that in regard to the 40 cents, 6-12-1939, the date of the trial Court's decree in O. S. No. 508 of 1934, was the terminus a quo.
He applied Article 116 of the Limitation Act because the transaction was evidenced by a registered instrument and held that under that article the claim for damages for breach of the covenant for title was barred as having been made beyond six years from the aforesaid dates. With regard to the claim for damages on the Basis that the covenant for quiet enjoyment was broken, the lower appellate Court observed that the plaint did not aver that there was actual dispossession of the appellants' father at any point of time, that in fact there was no actual dispossession and that therefore no cause of action accrued to him.
3. I cannot agree with the view taken by the learned District Judge on either of the points. It seems to me that on the authorities which are binding upon me I must hold that in a case like this the covenant for title as well as for quite enjoyment can be said to be broken at the same time, that is, when there is either actual or constructive dispossession. It is true that in Nagamma v. Aghorapalhi Sastri, 1949-1 Mad LT 456: (AIR 1949 Mad 652), which relates to a claim for breach of both the covenants under a sale deed. Division Bench of the Madras High Court consisting of Subba Rao J., (as he then was) and Panchapakesa Ayyar J., used the word 'actual physical dispossession' and observed that limitation does not begin to run against a person in possession even though his right to remain in possession may have been lost by a decree against him'.
But the learned Judges used those words with reference to the special facts of the case and the arguments addressed before them. That decision merely distinguishes between the right to dispossess and actual dispossession. The mere accrual of a right to dispossess in favour of a third party does not ipso facto and eo instanti give rise to a cause of action in favour of a vendee against the vendor. A vendee cannot complain against his vendor until and unless he is damnified and damage for breach of covenant either for tide or for quiet enjoyment cannot arise until the vendee is dispossessed. But that does not mean that the vendee should be dispossessed only by coercive process in the course of execution of tile decree made against him.
There is nothing to prevent a person from surrendering possession in obedience to a decree which he is bound to obey or from buying off, instead of surrendering possession, the third party's right to dispossess him. When he does so, his cause of action against his vendor arises on such surrender or payment (Vide Somasundaram Ayyar v Fischer, ILR 19 Mad 60), to which I shall make a detailed reference later. If, of course, such payment or surrender is made after execution of the decree for possession becomes barred by time, then he would be doing something which he need not have done and cannot complain that he has been hurt. In such a case he may have no cause of action at all. But so long as that decree is not barred, it is open to him to give up possession to the third party OF make a payment to him purchasing his right to dispossess and then claim against his own vendor-damages for breach of his covenants,
4. Some difficulty may arise in a case, for instance, where a decree for possession awards costs also against the vendee in favour of the third party and the decree is executed only so far as it relates to costs in the first instance and as regards possession it is executed at a later date. The amount of costs which the vendee becomes liable to pay under the decree may also be attributed to his vendor's breach of covenant. Would there be two causes of action then, one for the recovery of costs and another for recovery of damages on the basis of dispossession with two separate starting points of limitation? I should think not. That question has however not been argued before me and it is not necessary for me to express an opinion on that point.
5. In the present case, Ramabrahmam bought off his daughters' right to dispossess him. If he did so after the right obtained by his daughters had become barred by time, then, of course, as pointed out above, he would not be entitled to recover damages. But if the payment was made by him at a time when the decrees in O. S Nos. 79 of 1929 and 508 of 1934 could be enforced against him, then his cause of action for damages against the defendant will start from that date. It is not contended for the respondents that the decrees of the daughters could not be enforced by 8-9-1943, the date of Ex. P-5 when the claim of the daughters was compounded. If so, as a matter of law, the cause of action for the plaintiff could arise only when he paid the sum of Rs. 600/- to his daughters in order to retain his possession of the 60 cents, the right to which had been declared by Court in favour of his daughters. The present suit was instituted on 17-4-1946 and is clearly within time under Article 116 of the Limitation Act.
6. It is argued by Mr. Ramanarusu for the respondents that so for at least as the covenant for title is concerned, the claim for breach thereof became barred because the covenant for title in regard to 20 cents should be held to have been broken (as held by the lower appellate Court) on 27-7-1936, when for the first time a decree was made in favour of the plaintiff in O. S. No. 79 of 1929 and the present suit was brought more than 6 years thereafter. He also argues that even if the date of the second appellate decree i. e., 5-10-1938 is taken as the starting point for limitation, the claim is barred. He has referred me to the decision of the Privy Council in Juscurn Boid v. Prithichand Lal Choudhry, ILR 46 Cat 670: (AIR 1918 PC 151) as supporting his contention. Strictly speaking, it is not necessary for me to deal with this question, because, in this case, whether the plaintiff is awarded damages on the ground of breach of covenant of title or on the ground of breach of the covenant for quiet enjoyment, the amount to be awarded to him will be the same and if his claim for damages for breach of covenant of quiet enjoyment is in time, it would be unnecessary to consider whether the other claim is. But having regard to the great stress which has been laid by Mr. Ramanaruso on the ruling in ILR 46 Cal 670: (AIR 1918 PC 151), I would like to make a few observations on that case. The case was decided under rather peculiar circumstances. Both the parties before the Judicial Committee assumed and argued upon the basis that the case fell within the terms of Article 97 of the Limitation Act. Their Lordships seem to have doubted the applicability of that Article. They therefore observed as follows :
'But however that may Be, their Lordships feel that in view of the course the suit has consistently taken and also of the attitude on both sides here that they ought to deal with the case on the assumption, made for the purpose of this present appeal alone, but without affirming its correctness, that the present suit is competent and that it comes within the terms of Article 97.
It is from this assumed basis that they will approach the case.'
It must be noticed that column 3 of Article 97 describes the nature of the suit with which that Article is dealing as one 'for money paid upon an existing consideration which afterwards fails.' Beaman J.. pointed out in Narsing Shivbakas v. Pachu Rambakas, ILR 37 Bom. 538 at p. 540 (a decision of a Divisional' Bench of the Bombay High Court)
'In the case of purchased property the whole consideration contemplated is the property. That being given into the possession of the purchaser, so long as it remains, he had all the consideration that he is by law entitled to.'
The following remarks also of the learned Judge further are relevant:
'In such a case the promisee has received the only consideration he has stipulated for. In all cases of that kind it appears to us that it is only when the promisee is deprived of that consideration and the true character of the contract thus becomes revealed that he has any ground for complaint. And that is the proper time from which to compute the period of limitation. This is the principle distinctly underlying the provisions of Article 97.'
In this view, even if Articles 97 and 116 of the Limitation Act are to be read together it cannot be said that the covenant has been broken or that there has been any failure of consideration until dispossession has taken place. It is however doubtful, in the light of the decision in Mahomed Ali Sheriff v. Venkatapathi Rani, 39 Mad LJ 449: (AIR 1920 Mad 634) a case decided subsequent to the decision in ILR 46 Cal 670: (AIR 1918 PC 151), whether Article 97 could at all be said to apply. The proper article applicable is, as pointed out therein, only Article 116 and the third column of Article 116 says:
'When the period of limitation would begin to run against a suit brought on a similar contract not registered,' (i.e., when the contract is broken). It is unnecessary for purposes of this case to enlarge on this aspect of the Taw.
7. Suffice it to say that it would make no difference to the result of these appeals whether what is enforced is the covenant for title or covenant for quite enjoyment. But even in regard to the covenant for quite enjoyment, Mr. Ramanarusu has argued on the basis of the decision in ILR 19 Mad 60, already referred to that if there would be a cause of action even before a person is actually evicted, that cause of action must be held to have started as soon as a decree for possession was passed. If Mr. Ramanarusu's contention is right, it would be in the teeth of the decision, already cited, in 1949-1 Mad LJ 456: (AIR 1949 Mad 652). But I do not read ILR 19 Mad 60 as having that effect. The facts in that case were very similar to the facts before me. The suit was for damages for breach of a covenant for quite enjoyment. A third party had obtained a decree against the vendee, and taken, proceedings in execution. The vendee instead of surrendering possession paid a sum of Rs. 3500/-to the decree-holder and was allowed by him to retain possession of the property. The contention was that there being no actual eviction the plaintiff was not damnified and could not recover the damages claimed. The learned Judges overruled the contention. In their view, the payment by the vendee of a sum in satisfaction of the decree obtained by a third party gave rise to a cause of action for damages.
8. I am therefore of the opinion that the learned District Judge was in error in taking the view that the suit claim was barred either in regard to the item of 20 cents or in regard to the other item of 40 cents.
9. It remains to consider the quantum of damages awardable to the plaintiffs. Under Ex. P-5, the appellant's father purports to have paid a sum of Rs. 600/- in satisfaction of the decrees obtained by his daughters against him for possession of these items. He also purports to have paid certain sums in satisfaction of the claim for mesne profits and costs payable under the decrees. The total amount to which he is entitled from the defendant, according to him is Rs. 1,599-10-11. The trial Court which rejected his claim for damages in-respect of 20 cenfs and upheld the claim relating' to 40 cents, gave him a decree in respect of the latter item for Rs. 613-6-11. In respect of the other item, it has not computed the damages to be awarded. The lower appellate Court has recorded no finding as regards the quantum of damages in regard to either item. I have been taken through the evidence bearing upon this point and after a careful consideration of the several arguments, 30 have reached the conclusion that in respect of both the items the sum to which the plaintiffs should be adjudged entitled is Rs. 750/-.
10. The second appeal succeeds to the extent indicated above and is allowed. As regards costs, the appellants are entitled to half costs of this appeal. The plaintiffs will also get half costs in the Courts below. Interest at 6 per cent per annum will run on the sum awarded from the date of the first Court's decree. No leave.