1. This appeal has arisen from a suit brought by the appellants for refund of the price paid by them for a zamindari share in two villages to defendant 1 and his 'deceased brother Mahadeo Prasad, who executed a sale deed on 15th April 1907, in favour of some of the plaintiffs and the predecessors of the others. The principal question which arises in appeal is whether the suit has been rightly held by the lower Court to be barred by limitation.
2. The plaintiffs were deprived of the property conveyed by the aforesaid sale-deed in consequence of a decree for possession obtained by the sons of defendant 1 in suit No. 69 of 1923. The sons impugned the sale-deed executed by their father and Mahadeo Prasad on the ground that the property which it purported to convey belonged to the joint family of which the plaintiffs of that suit and the vendors were members and that there was no legal necessity for the alienation. The suit was decreed by the first Court on 31st January 1924. Delivery of possession was taken by the successful plaintiffs on 27th February 1924. Part of the land included in the shares was under the cultivation of the vendees who did not vacate it. Disputes arose between the sons of defendant 1 and the vendees, which led to proceedings under Section 145, Criminal P.C. These proceedings resulted in favour of the vendees, and the sons of defendant 1 had to institute another suit for possession in respect of the plots which had remained in possession of the vendees in spite of the symbolical delivery of possession. It is not disputed that the vendees retained possession of such plots till a time within six years before the institution of the present suit which was brought on 30th June 1930. From the decree obtained by the sons in the Court of first instance the vendees had appealed to the District Judge who dismissed it on 19th January 1926. A second appeal to the High Court was dismissed on 31st October 1928. A Letters Patent appeal was likewise dismissed on 2nd June 1930. It would be seen that the present suit is within six years from the judgment of the District Judge and the judgments of the High Court, in second and the Letters Patent appeals, and from the time when they finally lost possession of the plots actually cultivated by them. It was however brought, more than six years after the decree of the first Court and after the 'dakhal dehani' in respect of the shares in dispute. The controversy between the parties relates to the starting point of limitation. The present suit must be held to be barred, whichever Article of limitation mentioned in the course of the arguments (Arts. 62, 97, 116 and 120) be considered to be appropriate, if time is taken to have run from the date of the decree of the trial Court or the date of delivery of possession. If on the other hand, time be reckoned from the decree of any of the Courts of appeal, the suit is in time if Article 116 is applicable. If the period of limitation be reckoned from the final judgment of the High Court, the suit, is in time whichever article referred to be applied.
3. To determine the proper article of the Limitation Act applicable to the circumstances of the case and the starting point thereunder, the nature of the plaintiffs' claim has to be examined. The plaintiffs claimed refund of the price and damages basing their claim on a covenant contained in the sale-deed, dated 15th April 1907, which runs as follows:
Now we, the executants, or our heirs, neither have nor shall have any concern or connexion with the shares sold. If in future we, the executants, or our heirs, bring any sort of claim in respect of the thing sold, it shall be false and illegal. If by reason of the act of us, the executants, or the omission of us, the executants or our heirs, any sort of defect is found in respect of the shares sold and it is interfered with, the vendees shall have the power to recover by proper means the whole of their sale consideration from our house and moveable and immovable property....
4. The plaintiffs are also entitled to rely on the implied covenant imported into every sale-deed by Section 55(2), T.P. Act, whereby the seller shall he deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same. The implied covenant is however leas comprehensive than the express covenant quoted above as it also includes the undertaking which by force of Statute, is part of every contract of sale in respect of immovable property. If there had been anything in the express covenant overriding the implied covenant, the latter would have been superseded to that extent. The present case is free from any such complication. It has. been held in numerous, cases that Article 116 of the first Schedule to the Indian Limitation Act, is applicable to a suit for compensation by a vendee who has been deprived of the property purchased by him in consequence of a defect in the title of the vendor. See, for instance. Muhammad Siddiq v. Muhammad Nuh 1930 All. 771, in which a large number of cases are referred to and discussed. In certain cases a distinction has been drawn between cases in which a vendee is dispossessed and those in which he was unsuccessful in obtaining possession. To the latter class of cases Article 97 has been held to be more appropriate. We are of opinion that, having regard to the frame of the present suit, it cannot be regarded otherwise than as a suit for compensation for breach of a contract, in writing-and registered and that Article 116 is applicable. The plaintiffs charge the defendants with a breach of warranty of title and of covenant for quiet enjoyment. The measure of compensation is claimed to be the price paid by them together with out-of-pocket expenses incurred in defending their title. The covenant contained in the sale-deed of which the breach is complained is expressly referred to in the plaint.
5. The material question to determine is the starting point of limitation. According to the language of Article 116 read with Article 115, it is clearly the time when the contract, of which the breach is complained of, was broken. According to the covenant, on which the plaintiffs' claim rests, they are entitled to compensation if any sort of defect is found in respect of the share sold and it is interfered with. It was found by the trial Court in the suit by the sons of defendant 1 that there was no legal necessity for the sale, which the vendors were not empowered to make according to Hindu Law. The vendees' possession was interfered with when delivery of possession was given to the successful plaintiffs of suit No. 69 of 1923. It is argued that tke plaintiffs' cause of action did not arise until both contingencies happened, that is defect was found in the title of the vendors and possession of the vendees was interfered with, and that it cannot be said that the defect was found until the High Court finally decided that the sale was invalid. Reliance in placed on Sarvothama Row v. Chinnasami Pillai 1919 Mad. 887, which was a suit by the vendee far compensation after his suit for possession was dismissed by the first appellate Court and the High Court, though it had been decreed by the trial Court. The learned Judges apparently applied Article 97 of the Limitation Act and took the judgment of the High Court as the terminus a quo. The suit would have been barred if limitation had been reckoned from the date of the judgment of the first appellate Court. The case is certainly an authority for the view that the limitation runs from the date of the final decision of the High Court. The learned Judges observed that:
It was only when it was finally determined that the sale by the plaintiff's vendor could not take effect against the sale by the manager that the former sale became infructuous, consequently it was only then that the consideration failed.
6. The same view had been taken by the Madras High Court in an earlier case, Rajagopalan v. Somasundara Thambiran (1907) 30 Mad. 316, wherein it was held in similar circumstances that:
Where, as in the present case, a man has been dispossessed by suit, it would, in our opinion, be equally unreasonable to require him to sue for relief founded on such dispossession before the date of the final decree under which he was dispossessed. The dispossession in execution of the decree of the Court of first instance was not final but subject to the result of an appeal, and the effect of filing of the appeal, was to re-open the question of his right to possession and make it once more sub judice pending the decision of the appeal. If the appellant had succeeded, his dispossession under the decree of the Court of first instance would have been disregarded for purposes of limitation, and he would have been held to have been in possession throughout.
7. In a somewhat hard case like the one before us, the reasoning on which the decision of the Madras High Court proceeds is attractive. The existence or absence of legal necessity is highly controversial in many cases of alienations by the manager of a joint Hindu family, and the vendee may honestly believe that an adverse decision given by the trial Court is erroneous and is likely to be reversed in appeal. It is but reasonable that he should have an opportunity of challenging it by an appeal to a higher Court. At the same time, it should be borne in mind that the period of six years is sufficiently long to enable a vendee to fight out his case in the Courts of appeal and at any rate, in the first Court of appeal, which is the last Court so far as facts are concerned. The ground ion which the Madras view proceeds is negatived by a dictum of their Lordships of the Privy Council in Juscurn Boid v. Pirthichand Lal 1918 P.C. 151. The facts of that case are not similar but the argument repelled by their Lordships is the same as put forward before us and as was given effect to in the two Madras cases cited above. The question before their Lordships was whether failure of consideration occurred when an adverse decision was given by the trial Court or when it was affirmed by the High Court. Their Lordships said:
But by the decision in the first suit, No. 248 of 1904, the sale was reversed in its entirety and for all purposes irrespective of the decrees in the three later suits, so that if the reversal of the sale is the cause of action, the only question is whether time began to run, as the plaint alleges, from 3rd August 1906, the date of the appellate decree, or as the defendant-respondent contends, from 24th August 1905, the date of the original decree in Suit No. 248 of 1904.
8. The decree of the first Court had been affirmed in appeal.
Both Courts have held that the failure of consideration was at the date of the first Court's decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal.
9. It is clear that this dictum runs counter to the reasons on which the decision of the Madras High. Court is founded. Their Lordships do not recognize that in India the controversy set at rest by the decree of the first Court, is again sub judice if an appeal is presented, so as to interrupt the operation of the decree appealed from where it is affirmed in appeal. It may be otherwise where it is reversed or interfered with on appeal. In the case before us it was found by the Court of first instance that the sale was invalid and effect was given to its decree by delivery of possession. The vendees either did not apply to the Courts of appeal for stay of execution, or they applied but were unsuccessful. In either case, the decree of the trial Court remained operative throughout the litigation which was carried up to the High Court. We think that the plaintiff's cause of action was complete when the first Court found that the vendors had no power to sell and the vendees were dispossessed. Subsequent affirmance of the decree of the trial Court cannot give a fresh starting point. The fact that the vendees managed to retain actual possession of part of the land included in the vended property in spite of delivery of possession cannot save limitation. They were deprived of the shares sold by delivery of possession. If, in disregard to the process of law, they retained possession of the 'sir' and 'khudkasht' cultivated by them and had to part with it later on, it cannot, be relied on as showing that their cause of action accrued long after the delivery of possession. The covenant, on which the plaintiffs' suit is based, gives them a right to sue when 'interference' with their possession occurs1. It cannot be said that no interference occurred when delivery of possession was taken by the successful plaintiffs of suit No. 69 of 1923. The breach of the covenant under the law tabes place when interference falling short of complete dispossession occurs, for it follows another contingency contemplated by the covenant namely, 'defect is found'. We think that the finding of the Court of first instance in the suit brought by defendant 1, followed by delivery of possession, which at least amounts to interference within the meaning of the covenant, made time running against the plaintiffs under Article 116, Limitation Act.
10. Article 62 and 97 were referred to in the course of the arguments and relied on by the respondents. These articles provide shorter periods of limitation and. if they be applied the plaintiffs' suit is barred, but for the reasons already stated we do not think they can apply having regard to the circumstances and the frame of the present suit. It was faintly suggested on behalf of the appellants that Article 120 is applicable, as no other article is appropriate. As we hold that Article 116 is applicable, the residuary Article 120 cannot apply. The result is that this appeal is dismissed with costs.