Kuppuswami Ayyar, J.
1. The 1st defendant is the appellant in S.A. No. 780 and his sons, defendants 2 and 3 are the appellants in the other appeal. These two appeals arise out of a suit filed by the respondent for damages for breach of covenant for quiet enjoyment. Under a sale deed executed on the 19th April, 1928, the 1st defendant conveyed the plaint mentioned properties to the plaintiff for a consideration of Rs. 1,000. It was recited in the document that the sale was for discharging a debt due to one Poongavanam Ammal. It was a mortgage debt. The plaintiff's case was that the understanding between the parties was that the 1st defendant should discharge the mortgage. The recital in the document that Rs. 1,000 was received for discharging his debt was relied on in support of his case. The 1st defendant pleaded that the money due to Poongavanam Ammal was left with the vendee for payment and therefore he was not bound to pay it. A suit was filed for recovery of the money due under the mortgage executed to Poongavanam Ammal, the hypotheca was brought for sale and the plaintiff was dispossessed of the property he purchased. He therefore filed this suit. He claimed Rs. 1,000, the consideration paid by him, as damages due to him. Defendants 2 and 3 were impleaded as the undivided sons of the 1st defendant. The first Court found that the money payable to Poongavanam Ammal was retained by the vendee and that it was his default that resulted in the suit and the execution proceedings and that therefore he will not be entitled to any damages. The lower appellate Court found that the money was not retained by the vendee but was paid to the vendor and that consequently he was bound to discharge the.. debt and his failure to discharge the debt resulted in the vendee losing his properties. It therefore gave a decree for Rs. 1,000, the consideration amount, as against the 1st defendant and dismissed the suit, as against the defendants 2 and 3, but without costs. The 1st defendant has filed the appeal against the decree for Rs, 1,000 and defendants 2 and 3 have appealed against the decree of the lower appellate Court not providing for their costs;
2. The only three points urged in these two appeals in this Court are:
(1) Whether the plaintiff's suit was barred by limitation;
(2) Whether the measure of damages was the consideration paid or the value of the property at the time of the dispossession; and
(3) Whether the lower appellate Court was wrong in not awarding the costs of defendants 2 and 3.
Point No. 1.--The suit has to be conceived as one for breach of the covenant for quiet enjoyment and consequently the starting point of limitation is the date of the dispossession and it is not disputed, if that be so, the suit is in time. The first Court has dealt with the point of limitation and has found that the starting point of limitation was the date of dispossession and that therefore the suit was in time. This case was on all fours with the case reported in Alagarappa Reddiar v. Alagirisami Naick (1935) 88 M.L.J. 588. That was also a case in which in execution of a decree obtained on a prior mortgage the property was brought for sale and the vendee was evicted and he sued for recovery of damages. It was held that the starting point of limitation was the date of dispossession. It is true in that case the mortgage on which the suit was filed was not known to the parties, but that makes no difference.
3. The learned Counsel for the appellant cited a number of cases which dealt with claims resulting from default on the part of the purchaser in paying mortgage debts undertaken to be paid by him and which resulted in the vendor being evicted from other properties of his not covered by the sale but covered by the mortgage. There could be no covenant for quiet enjoyment in such cases and therefore those cases have no application to the facts of this case. I therefore find the suit was in time.
Point No. 2.--With regard to the measure of damages, it was for breach of the covenant for quiet enjoyment and consequently the measure of damages would be the market value of the property on the date of the dispossession. That was what was found by this Court in Algarappa, Reddiar v. Alagirisami Naick (1935) 88 M.L.J. 588. The learned District Judge has not adverted to this aspect of the case but took the consideration paid by him as the measure of damages. He was wrong. I therefore find the damages which the plaintiff will be entitled to is the market value of the property on the date of eviction.
4. As no evidence was let in about the market value of the property on the date of eviction, the suit will have to be remanded to the first Court.
Point No. 3.-The lower appellate Court has not given any reason why costs were not awarded to defendants 2 and 3, nor has it given any reasons as to why it found defendants 2 and 3 not liable. It was a case of contractual obligation and the plaintiff's case was that as undivided sons they were also liable. The first Court no doubt dismissed the suit against defendants 2 and 3; but that was because the case against defendant 1 had not been made out. In the absence of any finding that defendants 2 and 3 had become divided from the 1st defendant, the suit ought to have been decreed against them also. The defendants 2 and 3 cannot in these circumstances be heard to complain against the disallowance of their costs.
5. In the result S.A. No. 1116 of 1940 is dismissed. I make no order as to costs as the respondent is unrepresented and is absent.
6. In the other appeal the decree of the lower appellate Court is set aside and the suit remanded to the first Court for taking the evidence as regards the market value of the property on the date of eviction and to dispose of the suit in the light of the findings given above. The costs in all the three Courts will follow and abide the final result of the suit. The court-fee paid on the second appeal memorandum will be refunded.