Tavala Nageswara Row v. Saripalli Sambasiva Row

JUDGMENT

1. The lower Court has found that the area included within the boundaries stated in the sale-deed, Exhibit A, is 2,080 square yards. It observes that the plaintiff admits that he is in possession of 1,300 square yard's. Damages have been awarded for breach of covenant of title with respect to 281 square yards. It is not clear what view the lower Court took with respect to the deficit of nearly 500 square yards. The Judge does not say that the plaintiff is in possession of that extent also. The plaintiff's case is, that Venkatasami took possession of 510 square yards and that the defendant had no title to it. The defendant's plea was that Venkatasami did not take possession of any portion of the land sold to the plaintiff; and the Judge finds that the plaintiff has not proved that Venkatasami did so. But, in our opinion, Exhibit IV contains a clear admission by the defendant that Venkatasami took possession of 510 square yards sold to the plaintiff. He alleged that Venkatasanii acted wrongly in doing so, but in this suit the defendant did not contend that Venkatasami's possession of the land was wrongful and no issue was taken with regard to it. We are of opinion that the lower Court has misconstrued Exhibit IV; and it was not necessary for the plaintiff to let in further evidence regarding the loss of 510 square yards.

2. We hold also that the suit is not barred by limitation. This Court has held more than once that a suit for damages for breach of a covenant which, by virtue of the provisions of section 55 of the Transfer of Property Act, must be read with a sale-deed, is governed by Article 116 where the sale-deed is registered; Krishnan Nambiar v. Kannan 21 M. 8. The case cited is not in point. The plaintiff is entitled to damages for 510 square yards in addition to what was awarded by the lower Court, i.e., Rs. 251-3-8 with interest at 6 per cent from the 4th October 1902 up to date of payment. The decree of the lower Court must be modified accordingly. The parties will pay and receive proportionate costs in this appeal.