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Abdul Raheem Vs. Raghunath Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2133 of 1946
Judge
Reported inAIR1957All263
ActsLimitation Act, 1908 - Schedule - Article 116
AppellantAbdul Raheem
RespondentRaghunath Singh
Appellant AdvocateIshaq Ahmad, Adv.
Respondent AdvocateH.N. Seth and ;S.B.L. Gaur, Advs.
DispositionAppeal allowed
Excerpt:
limitation - registered lease - article 116 of limitation act, 1908 - suit filed for recovery of premium with interest on ground of non-compliance with condition of lease - appropriate to file under breach of contract - limitation is six years for breach of contract which will be applicable in the dispute. - - 4. the lease executed by the predecessors-in-title of the respondent in favour of the appellant provided that the lessee could use the land the subject of the lease for any purpose he liked other than a business in hides, and that he shall 'remain in possession and occupation of the plots generation after generation'.although not expressed in very concise language we construe this provision to be a covenant for quiet enjoyment. 10. on account of non-compliance with the conditions..........only question argued has been that of limitation, the appellant's case being that the appropriate article is article 116 and that the suit was within time.4. the lease executed by the predecessors-in-title of the respondent in favour of the appellant provided that the lessee could use the land the subject of the lease for any purpose he liked other than a business in hides, and that he shall 'remain in possession and occupation of the plots generation after generation'. although not expressed in very concise language we construe this provision to be a covenant for quiet enjoyment.5. paragraph 10 of the plaint reads as follows:'10. on account of non-compliance with the conditions of the patta, failure of consideration, ejectment of the plaintiff and invalidity of the lease the plaintiff.....
Judgment:

Mootham, C. J.

1. This is an appeal from a Judgment of the learned Additional Civil Judge of Ballia dismissing an appeal from a judgment of the Munsif of Rasra, District Ballia.

2. On the 21st January, 1921, the predeces-sors-in-title of the respondent executed in favour of the appellant a lease in perpetuity of a price of land, the consideration therefor being the payment of a premuim of Rs. 969 and an annual rent of Rs. 3-1-8. The lease was thereafter registered under the Indian Registration Act. It is common ground that the appellant was put into actual possession of the demised property, and that some eighteen months or two years later he sublet the land to one Ram Dhari, the son of Chirkut deceased.

After some earlier litigation, which it is not at present necessary to refer, the appellant in March, 1941, filed a suit under Section 59 of the U. P. Tenancy Act against his lessor and Ram Dhari for a declaration that he was a tenant of the former. On the 26th September, 1941, the suit was dismissed on the ground that Chirkut was the occupancy tenant of the land in 1921 and that the predecessors-in-title of the respondent had no power to execute the lease in favour of the appellant. From this decision the appellant appealed to the Commissioner but his appeal was dismissed on the 9th January, 1942.

Thereafter on the 30th December, 1944, the appellant filed a suit against the respondent for the recovery of the sum of Rs. 1,143, being the amount of the premium Rs. 969 with interest thereon. The trial court held that the appellant had no cause of action. The lower appellate court held that the suit was one to which Article 97 of the Second Schedule to the Indian Limitation Act applied, and that as limitation commenced to run from the 26th September, 1941, the date upon which his earlier suit in the revenue court was dismissed, the suit was barred by time.

3. In this court the only question argued has been that of limitation, the appellant's case being that the appropriate Article is Article 116 and that the suit was within time.

4. The lease executed by the predecessors-in-title of the respondent in favour of the appellant provided that the lessee could use the land the subject of the lease for any purpose he liked other than a business in hides, and that he shall 'remain in possession and occupation of the plots generation after generation'. Although not expressed in very concise language we construe this provision to be a covenant for quiet enjoyment.

5. Paragraph 10 of the plaint reads as follows:

'10. On account of non-compliance with the conditions of the Patta, failure of consideration, ejectment of the plaintiff and invalidity of the lease the plaintiff is entitled to get back the Nazrana money for which demands were made from the defendant several times but he does not pay any heed, hence this suit''.

6. The suit in our opinion was for the recovery of the amount originally paid as premium, with interest, thereon, as money paid upon an existingconsideration which afterwards failed or as damages for breach by the respondent of the conditions of the lease; and in our judgment the appropriate Article of the Indian Limitation Act is Article 116. In Mul Kunwar v. Chattar Singh, ILR 30 All 402 (A), this Court held that a suit on a covenant in a deed of sale of immoveable property, duly registered, was governed, as regards limitation, by Article 116, and a similar view was taken in Hanwant Rai v. Chandi Prasad : AIR1929All293 . and in Babu Ram v. Amba Prasad : AIR1946All159 .

7. Learned counsel for the respondent has relied upon Kundan Lal v. Bisheshar Dayal : AIR1927All734 . In this case the Court held that the period of limitation for a suit for the recovery of the purchase money paid by a purchaser as the price of immoveable property of which he failed to obtain possession is governed by either Article 97 or Article 62.

The Court considered ILR 30 All 402 (A), but preferred the later decisions of this Court in Janak Singh v. Walidad Khan, 13 All LJ 669: (AIR 1915 All 339) (E), and considered' itself bound by the decision of their Lordships of the Privy Council in Hanuman Kamat v. Hanuman Mandur, ILR 19 Cal 123 (PC) (F), which it held to be applicable in Janak Singh's case (E) however there was no breach of any covenant in the sale deed and on this ground the Court held that Art 116 was not applicable.

In Hanuman Kamat v. Hanuman Mandur (F), the facts were that a sale, which a member of a joint family had attempted to make, went off on the objection made by the other co-sharers but not before the purchase money had been paid. It does not appear that any sale deed was executed or registered, and the only question for consideration was whether the suit was one for the recovery of money had and received or for the recovery of money on an existing consideration which afterwards failed..

The Privy Council held the latter to be the case, and it neither considered nor was asked to consider whether the suit was one for compensation for the breach of a contract in writing registered. With due respect we think that neither of the decisions relied upon by the Court in Kundan Lal v. Bisheshar Dayal (D) is authority for the conclusion at which it arrived and which it is difficult to reconcile with either the earlier or later decisions of this Court to which we have referred.

8. The suit in the present appeal is based on a registered document, and as we think that that suit can properly be regarded as a suit for damages for breach of contract, we hold that the appropriate Article of the Indian Limitation Act is Article 116 and that the appellant's suit had to be filed within six years of the date upon which the contract was broken. It is not seriously in dispute that that date was the 26th September, 1941, and the suit was accordingly filed within time.

9. Learned counsel for the respondent has not sought to support the decree of the court below on any other ground. The appeal accordingly succeeds. The judgment and decree of the lower appellate court are set aside and the suit decreed with costs throughout


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