1. The only question raised in this second appeal is whether the plaintiff's suit to recover part of the purchase money paid by him in respect of a property purchased by him is barred by limitation. The purchase by the plaintiff was under a sale deed dated the 1st of October 1905 executed by the defendant and another in favour of the plaintiff. The son of the other vendor filed (O.S. No. 885 of 1909 to set aside the sale so far as the share of his father was concerned and obtained a decree in 1913 for possession of the half share belonging to the other vendor, This suit was filed in 1917.
2. The lower appellate court held that the plaintiff was entitled to recover Rs. 300, half the price paid by him, and that the suit was not barred by limitation as the starting point of limitation was the date of dispossession and that the suit was within three years from that date.
3. The contention for the appellant is that the suit not having been brought within three years from the date of the decree, which declared that the sale deed in respect of the one-half of the property is invalid, is barred by limitation and that the date of dispossession does not give the starting point of limitation. The question is whether this is to be treated as a claim to recover money on account of failure of consideration owing to the vendor having had no title to convey one-half of the property or whether it is to be treated as a suit for damages for breach of covenant for title or for breach of covenant for quiet enjoyment. If the suit can be brought under the two latter heads, it is clear that Article 116 of the Limitation Act would apply, the sale deed having been registered, and the party would have six years and the suit would not, in any event, be barred. The material part of the sale deed Ex. A runs as follows: 'In respect of the above sale, Rs. 325 has been received in cash and a promissory note for Rs. 275 is executed by you in favour of Subbayya out of us, in all amounting to Rs. 600 and the sale price has been received in this manner. If there is any dispute in respect of this by gnatis, Samantas and others etc., we shall settle them out of our own expense and we shall be bound to carry out this sale without obstruction.' In Mahomed All Sheriff v. Venkatapathi Raju : (1920)39MLJ449 it was held that a similar covenant in a sale deed amounted to a covenant for quiet enjoyment and that Article 116 applied to a breach of such covenant. Even assuming that there is no covenant for quiet enjoyment under the document, there is clearly a covenant for title and a breach of that covenant will, under Article 116 give the plaintiff six years to sue from the date when the covenant is broken. In the view we take it is unnecessary to consider whether if the suit is to be treated as, one to recover money on account of failure of consideration limitation would run from the date of the decree declaring that one of the plaintiff's vendors had no title or from the date of dispossession, a question on which there is a conflict of authority.
4. The Second appeal fails and is dismissed with costs.
5. The memorandum of objections as regards mesne profits is allowed and appellant will pay respondent Rs. 140.