1. This appeal has been filed against the judgment and decree of the Senior Subordinate Judge, Hoshiarpur dated May 9, 1961 by which he accepted the appeal and decreed the suit of the plaintiff for possession of land in dispute.
2. The facts which have been stated in the plaint, briefly, are that Tara Singh husband of defendant No. 1 and Nasib Singh defendant No. 2 (hereinafter referred to as the Vendors) sold the land in dispute to the plaintiff for a consideration of Rs. 5,000/- by a registered sale deed dated June 11, 1946. There was a provision in the deed that in case the plaintiff was deprived of any portion of the land, he would be entitled to make up the deficiency of that area from the other land of the vendors. After the sale, Randhir Singh, Kamla Devi and Shakuntala Devi instituted a suit for possession of land against the plaintiff and vendors on the ground that they were co-sharers in the land sold and were entitled to 5 kanals 11 marlas of land which was their share in the property sold. That suit was decreed in their favour on the basis of a compromise arrived at between the parties. The present suit has been instituted by the plaintiff for possession of 5 kanals and 11 marlas of land on the ground of the aforesaid covenant between the parties on the plea that he had been deprived of 5 kanals and 11 Marlas of land out of the land purchased by him. The defendants contested the suit and stated that in view of the compromise between Surain Singh plaintiff and the plaintiffs in the earlier suit, this suit was not maintainable. They also raised an objection regarding limitation. On the pleadings of the parties following issues were framed:--
1. Whether the suit is within time?
2. Whether Exhibit P. 3 is a bar to the present suit?
3. To what land the plaintiff is entitled?
3. The trial Court decided issue No. 1 in favour of the plaintiff and issue No. 2 in favour of the defendant. He held under issue No. 3 that in case of decree, the plaintiff was entitled to the land in dispute. In view of the finding on issue No. 2 the trial Court dismissed the suit. The plaintiff filed an appeal before the Senior Subordinate Judge, who reversed the finding of the trial Court on issue No. 2 and decreed the suit of the plaintiff. The defendants have come up in appeal against the judgment and decree of the first appellate Court to this Court.
4. The only submission which was raised by the learned counsel for the appellants was that in the present case Article 113 Limitation Act, 1908 (hereinafter referred to as the Act) was applicable which provided a limitation of three years for instituting the suit. The said article is as follows:--
Description of Suit Period of Limitation Time from which period begins to run.
Art 113--For specific performance of a contract. three years. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
5. On the other hand, the learned counsel for the respondent submitted that the case would be governed by Article 116 or Article 143 and not by Article 113. The said articles are also reproduced below for ready reference:--
Description of Suit Period of Limitation Time from which period begins to run.
Art. 116 for compensation for the breach of a contract in writing registered. six years. When the period of limitation would begin to run against a suit brought on a similar contract not registered.
Art. 143-Like Suit, when the plaintiff has become entitled by reason of any forfeiture or breach of condition. Twelve years. When the forfeiture is incurred or the condition is broken.
6. The covenant in the present case was that the land sold was free from all types of burdens and in case it goes out of hands of the vendee on account of some defect in title. Whether factual or legal the vendee would be entitled to make up the deficiency of the area from the land in Khasra No. 2231/344-345 2231/344-345 .
7. Article 116 relates to the payment of compensation for the breach of a contract in writing registered, it does not relate to making up of the deficiency of the lands from other lands. In order to see whether Article 116 will apply, it will be necessary to find out what is the meaning of the word 'compensation' as has been used in Article 116. The word 'compensation' has been used in Art. 116 in the same sense in which it has been used in s. 73 of the contract Act, 1872. The matter has been settled by a Full Bench of Lahore High Court in Mahomed Ghasita v. Siraj-ud-din ILR 2 Lah 376=(AIR 1922 Lah 198(FB)) wherein it has been held that the word 'compensation' in Article 115 as well as in Article 116 has the same meaning as it has in Section 73 of the Indian Contract Act, and denotes a sum of money payable to a person on account of loss or damage caused to him by the breach of contract.
8. The learned counsel for the respondent relied on Hanwant Rai v. Chandi Prasad AIR 1929 All 293 in support of his argument that Article 116 of the Act would govern the present case, that case is, however, distinguishable and the ratio in the case would not be applicable. In that case the claim was for compensation, whereas in the present case the claim is for possession of land.
9. I am in agreement with the observations of the Full Bench. Under the contract, if the aggrieved person is to be compensated in any other way than by payment of sum of money that will not be compensation within the meaning of Article 116. In the circumstances aforesaid, I am unable to agree with the contention of the learned counsel for the respondent that Art. 116 of the Act will apply. Article 143 of the Act has also no applicability in the present case. In the plaint the plaintiff claimed that he was entitled to land measuring 5 kanals 1 marlas out of Khasra No. 2231/344-345 2231/344-345 from the defendants on account of the express covenant in the registered sale deed and also on account of an implied contract. In transfer of Property Act, 1882 it has not been provided that the plaintiff was entitled to other piece of land if he was deprived of any land purchased by him. Thus, in the present case, the plaintiff can be said to be relying on the covenant which is given in the sale deed. According to the covenant he was entitled to the land in dispute if out of the land sold to him some portion went out of his hands. The question whether a particular clause is a covenant or a condition is to be gathered from the language which has been used by the plaintiff in the pleadings. In the present case the intention appears to be clear from reading of the pleadings that the parties treated the said clause as a covenant and not as a condition.
10. It has been observed in Veera Pillai v. Poonambala, (1899)9 Mad LJ 137 that the learning of the Courts, however, is against construing a provision as a condition subsequent if that construction can fairly be avoided. In the said decision, the Division Bench followed the observations of the Chancellor Kent in his commentaries, which are to the effect 'conditions subsequent are not favoured in law and are construed strictly because they tend to destroy estates, and the rigorous exaction of them is a species summumjus, and in many case hardly reconcilable with conscience.'
11. Following the aforesaid observations with which I agree I am of the view that Article 143 of the Act, is also not applicable in the present case.
12. The learned counsel for the appellant vehemently argued that the case was governed by Article 113 of the Act. In my view the arguments holds good. On the failure of a part of the consideration the respondent instituted a suit for enforcing a covenant which falls within the definition of suit for specific performance of a contract. What respondent wanted in this case was that he should be given the land on the basis of the contract on amount of the fact that some land has been taken from him, which was sold to him by the appellants. This view also finds support from a Full Bench decision of Allahabad High Court in Hari Tiwari v. Raghunath Tiwari (1899) ILR 11 All 27 (FB). The facts in that case were that in 19871 the plaintiffs and the defendants executed a deed whereby they effected an exchange of certain lands and each party agreed to resist by legal process or by bringing an action any claim or interference with the other in respect of the property exchange, and that if as a result of such proceedings either of the parties were deprived of the lands exchanged or any part of them, the other should make it up out of certain of his own land. The plaintiffs brought an action against a third party who claimed title to some of the exchanged lands, and joined the defendants as defendants the latter admitting the plaintiffs' title. The plaintiffs were defeated in that suit. They sued on the deed to have the exchange therein provided for carried out. It was held by the Full Bench as under:--
'that the cause of action arose in 1882, when there was a loss to the plaintiffs in the sense contemplated in the deed and the defendants were called upon specifically to perform their covenant, and that the present suit having been brought within three years after their refusal to perform it, was within the time fixed by Article 113, Schedule II of the Limitation Act. (XV of 1877).'
13. The same view has been taken in Veera Pillai's case (1899)9 Mad LJ 137 (supra) wherein it was observed that a suit for recovery of equivalent land fell under Article 113 of the Limitation Act, 1877 on the basis of an agreement language of Article 113 of the Act is identical with that of the earlier Act. I am in agreement with the aforesaid view. The plaintiffs were entitled to institute the suit within a period of three years under Article 113 when they became entitled to get the land from the appellants. The respondent was deprived of the possession of land in October, 1954. The cause of action arose to him in that year and he should have instituted the suit within a period of three years from that date. The suit has been instituted in January, 1960 more than three years after the cause of action arose and is clearly barred by limitation.
14. As a result of the above conclusions, the appeal is accepted, the finding of the learned appellate Court is reversed and the suit of the plaintiffs is dismissed with costs.
15. Appeal allowed.