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Abbas Dhali and ors. Vs. Masabdi Karikar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal783,24Ind.Cas.216
AppellantAbbas Dhali and ors.
RespondentMasabdi Karikar
Cases ReferredPrannath Roy Chowdry v. Rookea Begum
Excerpt:
vendor and purchaser - vendor, if can confer on transferee better title than he himself possesses--cause of action, if can be prolonged by transfer of title--limitation act (ix of 1908), schedule i, articles 136, 142, 144--'vendor', meaning of, in article 136. - .....barred by limitation on the ground that the plaintiff had no possession within twelve years of the date of suit. no reference was expressly made to any provision of the limitation act, but apparently article 142 was applied. it is obvious, however, that article 142 has no application, because that article contemplates a suit for possession of immoveable property when the plaintiff, while in possession, has been dispossessed or has discontinued the possession. upon appeal the subordinate judge held that article 144 was applicable and came to the conclusion that as the defendant had not proved adverse possession for more than 12 years, the title of the plaintiff had not been extinguished. it is plain, however, that recourse cannot be had to article 144 till it has been established that the.....
Judgment:

1. This appeal by the defendant in a suit for recovery of possession of land raises an important question of limitation. For this purpose the facts found by the Subordinate Judge may be briefly stated. The property originally belonged to a man named Gopal. On the 22nd March 1893 Gopal conveyed the property to two persons, Krishna and Jadu. Notwithstanding this transfer, however, Gopal continued in possession of the property. On the 29th February 1900, Krishna and Jadu, who had never obtained possession of the property, , conveyed it to Ibrahim. Ibrahim also never obtained possession and on the 21st March 1904 conveyed the property to the plaintiff. The plaintiff commenced this action on the 14th March 1910 against the defendant who, it has been found, has no title. The Court of first instance dismissed the suit as barred by limitation on the ground that the plaintiff had no possession within twelve years of the date of suit. No reference was expressly made to any provision of the Limitation Act, but apparently Article 142 was applied. It is obvious, however, that Article 142 has no application, because that Article contemplates a suit for possession of immoveable property when the plaintiff, while in possession, has been dispossessed or has discontinued the possession. Upon appeal the Subordinate Judge held that Article 144 was applicable and came to the conclusion that as the defendant had not proved adverse possession for more than 12 years, the title of the plaintiff had not been extinguished. It is plain, however, that recourse cannot be had to Article 144 till it has been established that the suit is not covered by any other provision of the Limitation Act. In our opinion Article 136 is clearly applicable to the circumstances of this case.

2. Article 136 provides that a suit by a purchaser at a private sale for possession of immoveable property sold when the vendor was out of possession at the date of the sale must be commenced within 12 years from the date when the vendor is first entitled to possession. This suit has been brought by a purchaser at a private sale for possession of immoveable property sold to him by his vendor who was out of possession at the date of the sale and is consequently within the scope of Article 136 [Gopal v. Krishna Rao 25 B. 275 : 2 Bom.L.R. 1021.]. The question thus arises, has the suit been commenced within twelve years from the date when the vendor was first entitled to possession? On behalf of the respondent it has been argued that the vendor of the plaintiff was first entitled to possession when his title accrued, namely, when he acquired title by purchase on the 21st March 1904. This contention, it may be conceded, is supported by the language of Article 136 if the words are literally taken. This literal interpretation, however, defeats the very object of Article 136, which embodies the principle that a purchaser at a private sale when the vendor was out of possession at the date of sale is in no better position than his vendor and has to bring his suit within the same period as would be allowed to his vendor. This doctrine was recognised in the case of Bhikaree Pandah v. Ajoodhya Pershad 8 W.R. 176. which laid down the fundamental principle that a vendor cannot confer upon the transferee a better title than he himself possesses. In the case before us, the vendors of the vendor of the plaintiff were bound to sue within 12 years from the 22nd March 1893, that is, before the 22nd March 1905. The vendor of the plaintiff could be in no better position than his vendors, and was, consequently, bound to sue before the 22nd March 1905. The plaintiff under his conveyance only acquired a title to recover the property by a suit instituted before the 22nd March 1905, and the mere fact that he has purchased the property does not give him a fresh start. As was observed by Lord Kings-down in the case of Prannath Roy Chowdry v. Rookea Begum 7 M.I.A. 323 at p. 353 : 4 W.R. (P.C.) 37 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 642 : 19 Eng. Rep. 331, a cause of action is not prolonged by mere transfer of title. If this view were not adopted, the period of limitation might be indefinitely extended by successive transfers, which could never have been the intention of the Legislature. In a case like the present, where there have been transfers by successive vendors, who have all been out of possession, Article 136 may well be construed so as to include in the term 'vendor' the first in the series of vendors who was entitled to sue for possession. In this view the suit is clearly barred by limitation.

3. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs, both here and in the Court of appeal below.


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