1. The first point argued in this second appeal is that the suit is barred by limitation.
2. Both the Courts have held that Article 97 of the Limitation Act applies to the case. But Mr. Sitarama Rao contends that Article 62 applies. In this case the plaintiff was actually in possession of the property on the date of the sale, which was on 26th April 1909. The property which he purchased was a carpenter-blacksmith inam. Defendants Nos. 3 and 4 were appointed as village blacksmiths and they brought a suit in the Revenue Court for possession and a decree was given on 26th May 1917. Possession was actually given to defendants Nos. 3 and 4 on 7th September 1.918. Both the Courts have held that limitation began to run only from the date on which the plaintiff was dispossessed of the property, i.e., 7th September 1918. The suit was brought on 10th September 1918. Now the contention of the appellant is that the sale itself was void ab initio and the period of limitation must be calculated from the date of the sale, i.e., 26th April 1909. and he relies upon Section 5 of Act III of 1895. Under that section, a village service inam cannot be transferred either by act of parties or through Court. But it does not prevent a person who is the village office- holder from either leasing the property or transferring it for consideration during his lifetime. Under the inam law the Government is the owner of the property and an office-holder is entitled to the usufruct of the property during the time he holds office. The moment he resigns it or he is dismissed or dies, his successor will be entitled to the property so long as he holds the office he enjoys the inam and a transfer by him of the land is not absolutely void. It is good so long as he is alive but the vendee cannot assert a title either against the Government or against the successor-in-office of the person who transferred the property to him. That being the law, it cannot be said that a transfer like this is ab initio void for the simple reason that on the vendor resigning the office or on the appointment of his successor, the inam land has to go to the office-holder. In this case on the appointment of defendants Nos. 3 and 4, the right of defendants Nos. 1 and 2 to hold the land ceased and the Revenue Court gave a decree in favour of defendants Nos. 3 and 4 for possession of property. That being so, the question is whether Article 97 of the Limitation Act applies. Article 97 gives three years' time for money paid upon existing consideration which afterwards fails. Here the vendee (i.e.,) the plaintiff was in actual possession of the property till he was evicted therefrom by a decree of the Court. The consideration having failed only on the date on which the plaintiff was dispossessed of the property, limitation began to run only from that date.
3. Reliance is placed by Mr. Sitarama Rao upon a case in Hukum Chand Boid v. Pirthichand Lal Chowdhury 50 Ind. Cas. 441 : 46 C.p 670 : 17 A.L.J. 514 : 1919 36 M.L.J. 557 : 23 C.W.N. 721 : 21 Bom. L.R. 632 : 26 M.L.T. 131 : 30 C.L.J. 71 : (1919) M.W.N. 258 : 10 L.W. 416 : 46 I.A. 52. In that case it was held that limitation period should be calculated from the date on which the suit declaring a, sale invalid was brought and not from the date on which the Appellate Court confirmed the decree of the lower Court. That case does not apply to the present case. Their Lordships observe at page 679: Page of 46 C.--[Ed.] 'There may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period should run, cut that is not the case here.' As observed by them, the loss of possession or failure to get possession may be the starting point of limitation. In this case the plaintiff did loose possession on a certain day and limitation must be calculated from that day. In this connection reference may be made to the decision of the Privy Council in Harnath Kuar v. Indar Bahadur Singh 71 Ind. Cas. 629 : 50 I.A. 69 : A.I.R. (1922) (P.C. ) 403 : 9 Q & A.L.R. 270 : 9 O.L.J. 652 : 44 M.L.J. 489 : 37 C.L.J. 346 : 45 A.P 179 : 27 C.W.N. 949 : 18 L.W. 383 : 26 O.C. 223 : 33 M.L.T. 216 : 5 P.L.T. 281 : 2 Pat. L.R. 237 in answer to the argument of the appellant that if a transaction is void ab initio limitation ought to run from the date of the transaction. Their Lordships observe at page 75 Page of 50 I.A. -[Ed.]: 'An agreement, therefore, discovered to be void is one discovered to be not enforceable by law, and in the language of the section would include an agreement that was void in that sense from its inception as distinct from a contract that becomes void.' The decision in Narsingh Shivbakas v. Pachu Rambakas 20 Ind. Cas. 254 : 37 B.P 538 : 15 Bom. L.R. 559 covers the point and it was held there that limitation began to run from the date on which the plaintiff lost possession of the property. I find this contention is not tenable and the lower Court has rightly held that Article 97 applies to the case.
4. The next contention of the appellant is that the plaintiff was in possession of the property for eight years and that he should be made to give an account of the rents and profits before he could claim the amount paid by him for the purchase of the property. The Subordinate Judge has given plaintiff 6 per cent. from the date of dispossession to the date of payment. It cannot be said that the interest on Rs. 800 which the defendant should have realised would be lower than the amount of income which the plaintiff deprived from the property. Granting for argument's sake that the appellant's contention is sound it is quite clear that the income did not amount to more than what the defendants could reasonably have realised by lending the amount on interest. But it is unnecessary to consider the point as I hold that when the plaintiff who paid consideration for the sale is deprived of the property sold to him he is entitled to get back the amount paid by him. He is not in the position of a mortgagee who is accountable for rents and profits or of a trespasser who is accountable to the owner for the rents and profits he has received. Supposing he did not realise from the land during the eight years what he could have realised by investing Rs. 800 for interest, can it be said that defendants should be asked to pay the damages which the plaintiff has sustained.
5. The decree of the lower Appellate Court is correct and the appeal fails and is dismissed with costs.