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Janak Singh Vs. Walidad Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All339; 30Ind.Cas.410
AppellantJanak Singh
RespondentWalidad Khan and anr.
Excerpt:
.....failure of consideration from the very beginning. if so, the suit is barred by limitation under article 62. but even if there was not an initial failure of consideration, the consideration must have failed very soon afterwards certainly more than three years before the present suit was brought. more than three years before the suit the respondents failed to get possession of the property and were sued by mahbub khan and others, who had been in possession for many years. the purchase was clearly a speculative purchase of property for the purpose of endeavoring to oust persons who had been in possession of the property for many years......content to bring a suit for declaration of their title. they were under no necessity to bring a suit for possession. it is, therefore, quite clear that the purchasers never did get possession of the share. 'we are, therefore, of opinion that article 116 of schedule i to the limitation act does not govern this case. the case appears to us to be governed either by article 62 or article 97 of the same schedule. in all probability there, was a total failure of consideration from the very beginning. if so, the suit is barred by limitation under article 62. but even if there was not an initial failure of consideration, the consideration must have failed very soon afterwards certainly more than three years before the present suit was brought. more than three years before the suit the.....
Judgment:

1. On November 17th, 1905, the respondents purchased a share in a zemindari village from the appellant. The sale-deed contained a recital that the vendor had placed the purchasers in possession of the property and an undertaking that the vendor would cause mutation of names to be effected in favour of the purchasers. It also contained a provision to the effect that if the purchasers were disturbed or dispossessed by any person proving himself to be entitled to the property, they would he entitled to recover from the vendor the price paid by them for the property. Mutation of names appears to have been effected in favour of the purchasers on February 7th, 1986. But it is clear that they did not obtain possession in fact of the share. In 1907 Mahbub Khan and others brought a suit against the vendor and the purchasers to have the sale-deed pet aside and for a declaration of their title to the property. Their claim was decreed in July 1907. The present respondents appealed to the District Court. Their appeal was dismissed and they filed a second appeal in this Court which was dismissed on May 28th, 1909. The present suit was instituted on April 18th, 191). The question for decision in this appeal is whether the suit was brought within time. The respondents' contention is that the suit is within time, (1) because it is governed by Article 116 of Schedule I to the Limitation Act, and (2) because if Article 97 be held to be applicable, time did not begin to run against them until their appeal to this Court was dismissed in May 1909, less than three years before the present suit was brought, it seems to us quite clear that Article 116 does not apply to the present suit. That Article provides for a suit for compensation for the breach of a contract in writing registered. The respondents contend that the deed of sale contains a contract on the part of the vendor to put the purchasers in possession. The sale-deed, however, contains no such contract. As already stated it recites as a fact, though it was not a fact, that the vendor had placed the purchasers in possession. The other provision contained in the deed, to the effect that the purchasers would be entitled to recover the price paid by them, in case they were disturbed or dispossessed by persons proving themselves entitled to the property, does not apply because the purchasers never did get possession. The lower Appellate Court seems to have been of opinion that the purchasers might be regarded as having obtained possession of the property because mutation of names was effected in their favour. It relies upon Section 201 of the Tenancy Act, Local Act II of 1901, as showing that the respondents, as the recorded proprietors of the share purchased, could have sued for the profits of that share in the Revenue Court. It does not appear, however, that they ever brought a suit for profits. They certainly did not obtain a decree for profits of the share, and as a matter of fact Mahbub Khan and others who had been in possession of the property for many years prior to the sale in question retained possession and were content to bring a suit for declaration of their title. They were under no necessity to bring a suit for possession. It is, therefore, quite clear that the purchasers never did get possession of the share. 'We are, therefore, of opinion that Article 116 of Schedule I to the Limitation Act does not govern this case. The case appears to us to be governed either by Article 62 or Article 97 of the same Schedule. In all probability there, was a total failure of consideration from the very beginning. If so, the suit is barred by limitation under Article 62. But even if there was not an initial failure of consideration, the consideration must have failed very soon afterwards certainly more than three years before the present suit was brought. More than three years before the suit the respondents failed to get possession of the property and were sued by Mahbub Khan and others, who had been in possession for many years. In our opinion whether Article 62 or Article 97 applies, the suit is barred by limitation. The purchase was clearly a speculative purchase of property for the purpose of endeavoring to oust persons who had been in possession of the property for many years. We allow this appeal, set aside the decrees of the Courts below and dismiss the suit of the respondents with costs in all three Courts. Costs in this Court will include fees on the higher scale.


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