1. The plaintiff whose suit for the recovery of certain empty Standard Oil Company four-gallon drums or their value has been dismissed by the lower appellate Court is the appellant in this second appeal. The defendant, while admitting that he received these drums, pleaded that he had returned the drums. Both the lower Courts disbelieved this plea and held that the defendant had not returned any of the drums. The suit has been dismissed by the lower appellate Court on the ground that it is barred by limitation under Article 49 of the Limitation Act. That Article runs thus:
Suit for other specific mo- Three years. When the property is
vable property, or for compen- wrongfully taken or injured, or
sation for wrongfully taking or when the detainer's possession
injuring or wrongfully detaining becomes unlawful.
In this case the plaint alleged that specific movable property was to be returned and that that was the understanding. The prayer is for the return of these drums. Then it was alleged that the defendant was wrongfully detaining them. Therefore, on the allegations in the plaint limitation would start when the defendant's possession became unlawful. The lower appellate Court held that possession became unlawful when demand was made by the plaintiff six months after the drums were given in 1928. The demand was made in the early part of 1929 and the drums were not given. That the defendant's possession became unlawful in 1929 is the view of the lower appellate Court In this Court in addition to supporting this view of the * lower Court, Mr. V.T. Rangaswami Aiyangar, the learned advocate for the respondent, has put forward another point, namely that the suit was not for the recovery of specific movable property or for compensation for wrongfully detaining the same. He says that it could not have been in the contemplation of the parties that the very same drums should be returned and that the suit is really for the recovery of similar drums or for their value. If this contention is accepted, Article 49 would not apply. The plaintiff made a distinct allegation in the plaint that the contract was that the defendant who took by way of loan 203 empty Standard Oil Company four-gallon drums did so on the under-standing and undertaking that they would be returned to the plaintiff after use by the defendant. This allegation makes it clear that the very same drams were to be returned. In the written statement as the defendant took up the stand that he had returned all the drums, he contented himself with saying that the allegations in paragraph 3 of the plaint are incorreet. There is no plea that, even if they were not returned, the contract was that identical drums were not to be returned but only drums of similar quality.
2. The plaintiff examined himself and deposed that, after the defendant became the agent he wanted some empty drums for his use, that he gave the drums and that the arrangement was that the defendant should return the drums to him whenever they were required. It is clear that the plaintiff's evidence is that the very drums should be returned. There was no cross-examination on this point. Advantage is taken of a statement in the evidence of the plaintiff's clerk that the defendant was to return drums of similar nature. It appears to me that what the witness meant is that if he had done it, probably there would have been no trouble in plaintiff accepting them. Anyway having. regard to the fact that the plaintiff's statement was not challenged in cross-examination, I am not prepared to accept the statement of the clerk in cross-examination. On the pleadings and on the evidence of the plaintiff I hold that the suit is for the recovery of specific movable property.
3. I may also mention that this aspect was not suggested in the lower Courts and both the lower Courts proceeded on the footing that specific articles were to be returned and that, when on demand the defendant did not return them forthwith, his possession became unlawful. So, we have to see whether the view of the lower appellate Court that when there was a demand and non-compliance, the defendant's possession became unlawful is correct.
4. In this case the evidence is that about six months after the entrustment there was a demand and that the defendant did not return the drums. The plaintiff says that shortly before the suit and before the registered notice Ex. H was given, he made oral demands and that the defendant was promising to return them. He was cross-examined on this point and was asked on how many occasions he made the demand and whether he mentioned the 203 drums in all these demands. Here again there is no cross-examination specifically on the point whether the defendant did not promise to return the drums. Even apart from this promise to return the drums, I am of opinion that in a case of this kind the defendant's possession did not become unlawful until there was a refusal by him to return the drums. He came into possession of the drums with the consent of the plaintiff. It was permissive possession to start with. Permissive possession cannot become unlawful unless there is at least a refusal on the part of the defendant to return the drums. A mere demand by the plaintiff will not be enough. Unless the defendant openly asserts, that he was not. going to return the drums, his possession cannot be said to be unlawful This point is in my opinion directly covered by the decision of a Bench of this Court (Benson and Sundara Aiyar, JJ.), in Gopalaswami Aiyar v. Subramania Sastri (1911) 22 M.L.J. 152 : I.L.R. Mad. 630. There a jewel was handed over to the defendant for raising money by pledging it with a third party. The defendant raised money and advanced it to the plaintiff. The plaintiff repaid the loan and asked the defendant to return the jewel and the defendant promised to get it and return it. He never refused to return the jewel until two years before the date of the suit. The plaintiff made a written demand for the return of the jewel on the 18th August, 1904. The defendant's refusal to return the jewel was on the 29th April, 1906 by means of notice and the suit was instituted on the 18th February, 1908, within three years of the defendant's refusal but more than three years after the plaintiff's demand. Dealing with the question when the defendant's possession became unlawful the learned Judges say:
The defendant must be taken to have held possession of the jewel on behalf of the plaintiff until the date of Ex. III. We are therefore of opinion that under Article 49 of the Indian Limitation Act, 1908, the suit is not barred by limitation. We are unable to agree with Mr. Srinivasa Aiyar's contention that mere silence on defendant's part when he received Ex. B would on this account amount to refusal.
They referred to and relied upon the decision of the Calcutta High Court in Gopal Chandra Bose v. Surendra Nath Dwtt 12 C.W.N. 1010 . Sitting as a single Judge I am bound by this decision. It is unnecessary for me to refer to the Calcutta decision which was followed in the above case or to any other cases. I hold that the defendant's possession which to start with was permissive did not become unlawful until he asserted title in himself or until he refused to return the drums. The refusal was admittedly within three years before the date of suit. I therefore reverse the decree of the lower appellate Court and restore that of the District Munsif with costs here and in the lower appellate Court.
5. The defendant will have two weeks from today to return the drums.
6. Leave to appeal refused.