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Subraminia Mudali Vs. Meenakshi Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1922Mad392; (1922)43MLJ194
AppellantSubraminia Mudali
RespondentMeenakshi Ammal and anr.
Cases ReferredMuthirulandi Poosari v. Sethuram Aiyar
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....words: 'since the plaintiff did not bring a suit within one year to set aside this decision, the suit is time-barred'. it is no doubt true that the plea is taken very generally; but it does not seem to us that it was taken ambiguously, and defendants are entitled to a trial of it. the district munsif framed an issue, 'is the suit in time but he dealt with it by a short statement that the suit must be found to be in time without further discussion. in the lower appellate court objection was taken to this finding with reference to muthirulandi poosari v. sethuram aiyar 36 m.l.j. 356. the lower appellate court, however, in our opinion, misread that decision as holding that time under section 18 would run not, as section 18 prescribes, from the date of an order or decision of the survey.....
Judgment:

1. The course of this litigation has been unfortunate, The dispute between the parties relates to 14 cents of land and is of a kind which is very common in connection with resurveys. Each party has some evidence of title to a particular extent and there is no room on the land to satisfy the claims of each. Some objection has been made to the lower appellate Court's judgment on the merits, but we do not think that any question of law has been raised; and with its decision on the question of fact we cannot interfere.

2. The substantial argument here has been against the decision of the lower Courts that the suit was not barred, as the defendants contended it was with reference to Section 13 of Act IV of 1897. The language of the pleadings is important. The first defendant, in paragraph 6 of his written statement, referred generally to mistaken action on the part of the Survey authorities and to his own objection to their action at the time of the grant, of the final patta. In the end, patta for 4 acres and 39 cents was granted to the defendants. The plea of limitation is then taken in these words: 'Since the plaintiff did not bring a suit within one year to set aside this decision, the suit is time-barred'. It is no doubt true that the plea is taken very generally; but it does not seem to us that it was taken ambiguously, and defendants are entitled to a trial of it. The District Munsif framed an issue, 'Is the suit in time but he dealt with it by a short statement that the suit must be found to be in time without further discussion. In the lower appellate Court objection was taken to this finding with reference to Muthirulandi Poosari v. Sethuram Aiyar 36 M.L.J. 356. The lower appellate Court, however, in our opinion, misread that decision as holding that time under Section 18 would run not, as Section 18 prescribes, from the date of an order or decision of the Survey authorities, but from the doing of an official act such as the actual demarcation of the land by fixing boundary stones by the Survey department. That construction of the judgment in the case cited cannot be sustained. There is no doubt a reference in it to the doing of an official act; but that reference occurs in the discussion of a previous case, Krishnamma Achayya 36 M.L.J. 356 , in which the application of Article 16 of Schedule 11 of the Limitation Act of 1871 was in question and an official act would therefore be the starting point. There is nothing in the judgment to countenance any deviation from the terms of Section 13 of Act IV of 1897. Following that section we must hold that the starting point for limitation which the defendants had to establish was an order of the Survey authorities. It is in fact fairly clear that both the lower Courts were misled by their construction of the authority above mentioned; for the record of evidence in the Munsiff's Court shows that no attention was paid to the date of any order such as Section 13 contemplates, and that the first defendant was examined and cross-examined not as to whether he had obtained such an order but as to whether the boundary had been altered, the position of stones had been changed and an official act had been done, Probably for the same reason the order of the Survey authorities was not filed and we have very little on record as to the course taken by the enquiry and nothing on the important question whether the survey order was passed as Section 13 requires in settlement of a dispute.

3. In these circumstances we must call upon the lower appellate Court to submit a revised finding on any evidence which the parties may adduce on the issue, 'Whether the suit is in time with reference to Section 13 of Act IV of 1897'. The finding is due in this Court by the 20th August and 7 days will be allowed for objections.

4. In compliance with the order contained in the above judgment.

5. The Court of the Subordinate judge of Vellore submitted following finding:

6. I find on the issue that the suit is not barred.

7. This second appeal coming on for final hearing after the return of the finding of the lower appellate Court upon the issue referred by this Court for trial.


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