1. This is a second appeal by the plaintiff in a suit for damages. The appellant sold a she-buffalo to the respondent in Section 1995. There was a calf which the appellant did not include in the sale. According to the plaintiff it was agreed on Kartik vad 13 Section 1995 that the calf should be taken over by the respondent to be returned to the appellant when the she buffalo would calve again and on failure to do so would pay Rs. 25 by the latest on Kartik Sud 13 Section 1996. On failure to pay on the appointed date, the amount was to carry interest at 34 per cent per annum. The suit was filed on 23rd February 1945 corresponding to Fulgun Sud 18/2001 for recovery of Rs. 50 The defendant admitted having purchased the buffalo but denied the remaining allegations and the execution of the agreement The trial Court decreed the suit for Rs. 33 but on appeal, the learned Sub-Judge held that the suit was barred by limitation. He accepted the appeal and dismissed the suit.
2. In this appeal, it is argued that the correct article applicable to the suit was Article 65, Marwar Limitation Act, 1927, and not Article 49 as held by the lower Court. The former gives 6 years limitation from the date of cause of action which in this case is said to be Kartik Sad 13 Section 1996.
3. In order to appreciate the arguments, the consideration of the two articles, and Article 48, which is connected with succeeding article, is necessary. Articles 48, 49 and 65, Marwar Limitation Act, 1927, are as follows :
Description of suits.
Period of limition.
Time from which period begine to run.
For specific movable property lost or acquired by theft ordishonest misappropriation or conversion, or for compensation for wrongfullytakingor detaining the same.
When the person having the right to the possession of theproperty first learna in whose-possession it is.
For other specific movable property or for compensation forwrongfully taking or injuring or wrongfully detaining the same.
When the property is wrongfully taken or injured or when the detainer'spossession be-
For compensation for breach of promise to do anything at aspecified time or upon the happening of a specified contingency.
When the time specified arrives or the contingency hap-pens.
4. The calf was no doubt movable property and the suit was for compensation for not returning the same. It is argued that the failure to return would not amount to wrongful detention of the same within the meaning of Article 19, and that wrongful detention should involve some sort of conversion or dishonest intention in the act. This argument confuses Article 49 with Article 48. Where dishonest, misappropriation or conversion is involved, Article 48 is applicable in which a different starting point of limitation is provided. Article 49 provides for suit in cases other than provided by Section 48, and, therefore, the element of dishonest misappropriation or conversion need not exist in those cases. The word 'wrongfully' appearing in Article 49 has not been defined in the act and in its plain meaning, it would be synonymous with 'not rightful' (Webster's New International Dictionary).
5. In the present case, the calf was to be returned on calving of the she-buffalo and its detention after that event by the respondent was not rightful and, therefore, wrongful. The suit was clearly for compensation for wrongfully detaining the calf. The clause in the agreement to pay RS. 25 for non-return of the calf only purported to fix the amount of damages for the wrongful detention and the date has significance only with respect to the liability for interest or otherwise.
6. According to the plaintiff, the she-buffalo calved every year and must have calved by Kartik Sud 13 Sectioon 1996 a year after the date of the agreement. For the perusal of para. 2 of the plaint, the plaintiff seems to aver that the she-buffalo had calved prior to Kartik Sud 13 Section 1996, Article 49 was, therefore, clearly applicable to the case and the cause of action for wrongful detention of the property began prior to Kartik Sud 13 Section 1996. The suit having been filed 3 years after the said event was thus barred by time.
7. It was argued that the application of Article 65 would be more correct in this case as the defendant undertook to return the calf on the happening of the specified contingency viz., the calving of the she-buffalo.
8. Article 65 is more general in its application and the claim being for compensation for wrongful detention of specific movable property more aptly falls within Article 49. It is a well-known principle of law that where there are two articles which may govern the case the more specific article will exclude the general article. As stated above, Article 49 is more particularly applicable and the lower Court was right in holding that the suit was barred by limitation under Article 49, Marwar Limitation Act. The appeal therefore, fails and is hereby dismissed with costs.