POLAVARAPU VENKATASWAMI Vs. NALLURI VENKAYYA
HIGH COURT OF MADRAS
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Kbishnaswami Nayudu, J. -
(1.) THE defendant is the appellant and the appeal is against the decree of the learned Subordinate Judge of Bapatla in O. S. No. 30 of 1947, the decree being for damages for breach of covenant of title and quiet possession. 2 Acres 84 cents of dry lands originally belonged to one Jalambhotlu, who leased it to the plaintiff's father for a period of 25 years under Ex. A -1 dated 4 -10 -1921 on an annual rental of Rs. 76 subject to a payment of quit rent out of the maktha amounting to Rs. 2 -6 -6. The property owned by Jalambhotlu was of the extent of 3 acres and odd. After the death of Jalambhotlu his widow Sitaramamma, who acquired absolute rights to the property under a will left by her husband, conveyed 2 acres 84 cents out of the 3 acres and odd owned by Jalambhotlu to the defendant under a sale deed, Ex. B -2 dated 24 -6 -1032 for a consideration of Rs. 1250. The property was already subject to an attachment before the judgment in O. S. No. 170 of 1932, a suit instituted by one Subbamma against Sitaramamma, for recovery of a sum of Rs. 500. Subsequently a decree was also passed in the suit. On 15 -9 -1933 the defendant conveyed 2 acres and 84 cents of lands to the plaintiff under the original of Ex. B -3 for Rs. 1200. Out of the consideration, a sum of Rs. 500 was received by the defendant for the purpose of discharging the decree debt in O. S. No. 170 of 1932, in which there was already an attachment pending against the property. But after the sale deed, obviously, the defendant having received the amount of Rs. 500 did not pay and satisfy the decree in O. S. No. 170 of 1932 and further proceedings in execution of the decree appear to have been taken and two acres and 84 cents of lands were sold on 9 -11 -1936 and symbolical possession was taken in favour of the auction -purchaser. The defendant instead of paying and settling the decree in O. S. No. 170 of 1932 appears to have launched himself in litigation by filing a claim petition and after dismissal of the claim petition by instituting a claim suit O. S. No. 508 of 1933 in the District Munsif's Court, Ongole, which was dismissed on 28 -11 -1935. He filed an appeal against that decision, A. S. No. 4 of 1936, which likewise was dismissed on 16 -8 -1937. Not content with this, he appears to have filed S. A. No. 142 of 1938 in this Court, which received a similar fate of dismissal on 11 -2 -1941. It may be mentioned that in not one of these proceedings started by the defendant, the plaintiff was a party.
(2.) THE auction -purchaser by the strength of his purchase of the property in court auction instituted O. S. No. 112 of 1943 in the District Munsif's Court, Ongole, against the plaintiff for recovery of the makthas or the lease amount due upto 1943, i.e., a total sum of Rs. 612 -12 -0. The plaintiff resisted the suit on the strength of his title and possession by the purchase under the original of Ex. B -3, but the suit Vas decreed in favour of the auction -purchaser on 30 -9 -1943. The plaintiff appealed in A. S. No. 31 of 1944 on the file of the Subordinate Court of Bapatla and the appeal was dismissed on 16 -1 -1945. The period of 25 years lease also expired on 4 -10 -1946 and the auction -purchaser took actual possession on 22 -3 -1947. The present suit for breach of covenant of title and quiet possession was instituted on 11 -4 -1947. The plaintiff claimed a sum of Rs. 9500 as damages for the breach. The suit was resisted by the defendant in his written statement. He denied that there was any covenant of title and on the other hand pleaded that there was an agreement not to claim compensation or damages in regard to warranties of title, possession and enjoyment except In regard to any alienations made by himself of the suit property and also raised a plea of limitation besides questioning the quantum of damages claimed by the plaintiff. The lower Court held in favour of the plaintiff and decreed the suit for Rs. 9500 and hence this appeal. There contentions were urged on behalf of the appellant. All the three contentions that were raised in the lower Court were urged before us and as regards the first of the contentions that there was no covenant of title and quiet possession and enjoyment, there was not much argument by the Counsel on behalf of the appellant, as undoubtedly there could not be any doubt that in this case even apart from any specific covenant as to title in the document, by virtue of Section 55, Clause (2), Transfer of Property Act, the defendant must be deemed to have contracted with the plaintiff, that the interest, which he professed to transfer under the sale deed, Ex. B -3, to the plaintiff subsisted and that he had power to transfer the same. There is always an implied covenant as to title and quiet possession and enjoyment in all sales of immovable properties, unless it is shown that there is an express contract to the contrary by the terms of the document, such covenant for title would subsist and would enure to the benefit of the purchaser, if there should be a breach of that covenant, at any subsequent stage. Very properly the learned Counsel did not press his argument on this issue and we have no doubt in holding that there was such a covenant. An attempt was made in the lower Court to cull out from the terms of Ex. B -3 a contract to the contrary, which very properly has been rejected by the lower Court as there could not be any means of any contract to the contrary which could be ascertained from the terms of Ex. B -3.
(3.) THE only two other questions that are required to be determined in this appeal are whether the suit is barred by limitation and whether the damages awarded are excessive: On the first of these questions as to limitation, it is contended that the starting point of limitation must be taken to be 9 -11 -1935, the date of sale held in execution of the decree in O.S. NO. 170 of 1932, & in any event 11 -3 -1937, the date when the auction -purchaser purports to have obtained symbolical delivery of the property. In our view, none of these dates should be relied on to fix the cause of action. As whatever might have been the declarations made by the Court as to title relating to this property, such a declaration was made In the absence of the plaintiff and in the proceedings to which the plaintiff was not a party and it could not be expected that in so far as he was concerned the title has been decided as against him. Equally so. as regards possession, since what was delivered was only symbolical possession as nothing more could be given to the auction -purchaser. And it is not in evidence that the plaintiff was aware of this delivery of possession symbolically and in the absence of such evidence, it is not safe to hold that the cause of action had arisen on the date of the order or on the date of the effecting of this symbolical delivery to the auction -purchaser, which was on 11 -3 -1937.;
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