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Rajah Kaundan Vs. Rangaya Kaundan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1897)7MLJ225
AppellantRajah Kaundan
RespondentRangaya Kaundan
Cases ReferredSrinivasa v. Emperumanar I.L.R.
Excerpt:
- - it was clearly a wrongful withhold-in of the property independently of any provisions of the act. the present suit was for the recovery of specific movable property, and, therefore, does not fall within the category under section 78. we are satisfied that the suit was not brought in this form in order to evade the limitation provided by section 78. the suit was for a jewel and a brass pot, and there was no allegation on either side that the property had been sold prior to the suit......suit shall be instituted within six months from the time at which the cause of action arose.' the district judge held that the distraint was not an professedly done under the law, but in defiance of it, inasmuch as no pattah had, in fact, been tendered as required by law and he referred to the case reported in srinivasa v. emperumanar i.l.r. 2 m. 42 in support of his decision. he, therefore, held that the special limitation in section 78 of act viii of 1865 did not apply, but that the case was governed, by article 49, seh. ii of the indian limitation act and confirmed the decree of the district judge awarding the plaintiff rs. 60 as the value of the property distrained. the defendant appeals.2. we are unable to agree with the district judge that the appellant did not act professedly.....
Judgment:

1. This was a suit by a tenant to recover specific property alleged to have been wrongfully distrained by his landlord. The plaint prayed for the recovery of the property and of its price, Rs. 100. The defendant pleaded that the suit was barred by the special limitation prescribed under Section 78 of the Rent Recovery Act (Madras) VIII of 1865, as the suit was brought more than six months after the cause of action had accrued. Section 78 enacts that ' nothing in this section shall be construed to debar any person from proceeding in the ordinary tribunals to recover money paid or to obtain damages in respect of anything professedly done under the authority of this.Act--provided that civil courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose.' The District Judge held that the distraint was not an professedly done under the law, but in defiance of it, inasmuch as no pattah had, in fact, been tendered as required by law and he referred to the case reported in Srinivasa v. Emperumanar I.L.R. 2 M. 42 in support of his decision. He, therefore, held that the special limitation in Section 78 of Act VIII of 1865 did not apply, but that the case was governed, by Article 49, Seh. ii of the Indian Limitation Act and confirmed the decree of the District Judge awarding the plaintiff Rs. 60 as the value of the property distrained. The defendant appeals.

2. We are unable to agree with the District Judge that the appellant did not act professedly under the Rent Recovery Act, and in defiance of it. The case reported in I.L.R., 2 M., 42 stands on a different footing from the present case. There the Sub-Collector, finding that the formalities required by the Act had not been observed, removed the attachment and directed the restoration of the property. The cause of action was the refusal to restore the property after such order. That could not in any view be regarded as a thing even professedly done under the Act. It was clearly a wrongful withhold-in of the property independently of any provisions of the Act. In the present case the distress professed to be made by the landlord under the provisions of the Act. The fact that no pattah had previously been tendered, though it may affect the legality of the distress, does not alter its character as a thing done professedly under the Act.

3. We, therefore, disagree with the ground on which the District Judge has based his decision, We, however, hold on other grounds that Section 78 is inapplicable. The special limit provided in that section must be restricted to the classes of suits specified in the section, viz., to suits (1) to recover money paid, and (2) to obtain damages in respect of anything professedly done nnder the Act. The present suit was for the recovery of specific movable property, and, therefore, does not fall within the category under Section 78. We are satisfied that the suit was not brought in this form in order to evade the limitation provided by Section 78. The suit was for a jewel and a brass pot, and there was no allegation on either side that the property had been sold prior to the suit. The mere fact that there was an alternative prayer for the value of the property, does not alter the essential character of the suit as one for recovery of specific movable property.

4. As Section 78 is inapplicable, the limitation is that prescribed by Article 49, Scheduel ii of the Indian Limitation Act, and the suit is not barred.

5. We therefore, confirm the decree of the Courts below and dismiss this second appeal with costs.


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