JUDGMENT
The villages of Puduvayal and Pudukuruchi in the Sivaganga zamindari were granted by Rani Kutama Nachiyar on a permanent lease to one Sivagami.
She sold three-fourths of the two villages to Authappa Chetti, the plaintiff, on the 1st July 1885 and on the same day the remaining one-fourth to Kolandasami Tevar.
The plaintiff now sues in Original Suit No. 855 of 1900 to recover Puduvayal and in Original Suit No. 354 of 1900 to recover Pudukuruchi.
The contending defendant in both the suits is one Palaniappa Chetti who claims under a sale-deed from the same vendor Sivagami, dated the 21st May 1885, but which is denounced by the plaintiff to no antedated,—the document itself having only come into existence on or shortly before the 12th September 1885, the date it was presented for registration.
The questions before us are, whether Palaniappa is estopped by certain decisions which will be presently referred to from relying upon his sale-deed of 1885, and whether the plaintiff's suits are barred by limitation?
Second Appeal No. 1278.—As to Puduvayal these are the facts. That village was already mortgaged in October 1882 to one Sivasubramauiom Servai, and Authappa, the plaintiff, having paid the entire mortgage amount due to him brought this suit to recover from Kolandasami, the sum of Rs. 67-8-0, for his share of the mortgage amount which he was bound to pay on account of his one-fourth share of the property by the sale of such share, or to recover possession of that share on the ground that Sivasubramaniem was entitled to possession. That suit was resisted by Palaniappa, the appellant before us, on the same grounds, substantially as those now put forward, i.e, that the plaintiffs sale-deed was without consideration that his own sale-deed was supported by consideration and executed in May 1885, and therefore prior in date to that of the plaintiff. Both the lower Courts held that the sale to Palaniappa was antedated and therefore a forgery and that the sale to the plaintiff was true and supported by consideration, and accordingly passed a decree in favour of the plaintiff for possession of one-fourth of the village. The High Court, however, set aside the decrees of both the Courts and passed a decision, the effect of which is in question before us. The decision runs thus:—
“We cannot say the appellant ought not to have been joined in the suit. The decree must however be varied by substituting a decree against the first defendant (Kolandasami) for the money and in default after six months with direction for sale of his quarter share of the property. Both decrees are set aside. Appellant (Palaniappa) must have his costs throughout from the plaintiff. The first defendant must pay the plaintiff's costs in the Court of First Instance.”
It is contended before us that this judgment exonerates the appellant, entirely from the suit as his costs throughout have been ordered to no paid by the plaintiff, the respondent, and the decrees of the lower Courts have been set aside. It is further urged that the decision that the appellant was not an unnecessary party to the suit has reference to the suit as originally framed, which contained a prayer for possession, and as the High Court dismissed the claim for possession, the suit must he taken to have been entirely dismissed against him as no was an unnecessary party to the suit, with reference to the relief which alone was finally granted. We are unable to accede to this contention. Palaniappa was admittedly in possession as owner of the village, a part of which was directed by the High Court decree to be sold. He was therefore a necessary party. It was necessary to find that the plaintiff's sale was valid, that Kolandasami was the owner of the one-fourth share and that the appellant's sale-deed was a forgery conveying to him no interest in law in that one-fourth share, for the High Court to order that share to be sold as Kolandasami's property to satisfy the plaintiff's claim, and these facts were found by the lower Courts. It was unnecessary to re-state those findings in the High Court judgment, when the High Court only substituted the proper relief which, in their own opinion, ought to have been granted on those findings which were not interfered with. We have no doubt, therefore, that the High Court adopted those findings to grant the relief which was possible only on such findings.
Those questions are therefore clearly res judicata, and the lower Courts are right in holding that it is not open to the appellant now to plead that his sale-deed is not antedated and not a forgery.
The appellant then contends that this suit, instituted in August 1900, is barred by limitation, as it is found that he has been in possession of this village from October 1885. The lower Courts have held that the suit is not barred, as the time during which the respondent (plaintiff) has been prosecuting Original Suit No. 460 of 1895 and the appeals arising therefrom must be excluded under section 14 of the Limitation Act.
That suit was brought by the same plaintiff to recover the same property, i.e, three-fourths share of the village on the same title against the same defendant Palaniappa alone. Kolandasami, the purchaser of the one-fourth share, was not a party, the plaintiff alleging in his plaint that Kolandasawmi had attested the sale-deed to the defendant Palaniappa. This suit was tried along with Original Suit No. 461 of 1895 already refererd to, Palaniappa's sale-deed was found to be a forgery and the plaintiff was found to have a valid title. The lower Courts gave a decree for possession in favour of the plaintiff. But the High Court reversed that decree on the ground that Kolandasami, as the owner of the one-quarter share ought to have been made a party in order that the plaintiff should have his three-quarters share delivered to him. It is contended for the respondent that this was a dismissal of the suit for non-joinder and non-joinder is a cause of like nature under section 14 of the Limitation Act. For the exclusion of time under this section the Court must have been unable to entertain the suit from defect of jurisdiction or other cause of a like nature.
In this case it is unnecessary for us to decide the question whether the dismissal of a suit for non-joinder will entitle a plaintiff to claim the exclusion of time under section 14, when the suit is dismissed without any trial, and simply on the case set up in the plaint. But in this case there is no doubt that the dismissal of the suit was based on the findings arrived at by the lower Courts. Those findings, it is rightly contended for the respondent, preclude the plaintiff from setting up the same pleas. In these circumstances, it appears to be clear to us that the Courts which tried Original Suit No. 460 were not unable to entertain the suit for any reason. In fact the Courts were able to and did entertain the suit.
We agree, therefore, with the appellant's contention that the respondent is not entitled to any deduction of time under section 14 of the Limitation Act.
It is next contended that, as the plaintiff was in possession as the owner of Puduvayal between July 1896 and December 1898, limitation runs against him only from 1898 and the suit is therefore not barred.
The plaintiff was placed in possession in execution of the decree in Original Suit No. 460 of 1895 and when the decrees of the Courts below in his favour were reversed by the High Court, he was deprived of such possession and Palaniappa was restored to possession and he obtained mesne profits.
It is contended for the first respondent that the plaintiff cannot be treated as having been in possession during such period and reliance is placed on the decisions reported in Deyumbery Dossee v. Rajah Annundnath Poy(1), Firingee Sahoo v. Sham Manjhee(2) and Dagdu v. Kalu(3).
The case before us, however, is governed by article 142 of the Limitation Act, and the plaintiff was admittedly originally dispossessed in October 1885, and he cannot treat the dispossession in 1898 under the order of the Court restoring possession to Palaniappa as giving him a fresh cause of action (Sayad Nasrudin…(Original Plaintiff), v. Venkatesh Prabhu…(Original Defendant), .*(4) is clearly in point.
We must hold the suit No. 355 of 1900 to recover Puduvayal is barred by limitation. The Second Appeal No. 1278 of 1902 is allowed and the suit is dismissed with costs throughout.
Second Appeal No. 1279, Pudukunichi.—We have already held that Palaniappa is precluded from relying upon his sale-deed on account of the prior decision holding that it is antedated and a forgery and the plaintiff is entitled to the decree he has got unless the defendant's plea that he has been in adverse possession of the equity of redemption is to prevail, a mortgagee having been in actual possession of the village.
The lower Appellate Court has found on the evidence that he has not proved such adverse possession.
The defendant-appellant argues that the orders of the Courts to which the plaintiff was a party, directing that possession should he delivered to him under section 264 of the Civil Procedure Code conclusively proves that no has obtained such adverse possession.
Even assuming this to lie the case, the defendant obtained such symbolical possession only in April 1894, under an order of Court and the effect of that order cannot be referred back in the most favourable view to the defendant, to any time before November 1890 when the lessees obtained actual possession and when according to the defendant, he was deprived of his alleged possession of the equity of redemption. As to any possession before that date, we must accept the finding of the lower Court that the defendant has not proved any possession.
He has not been therefore in possession for more than twelve years and the plaintiff's suit is not barred.
It is unnecessary, therefore, in this case to decide whether a bare equity of redemption is capable of adverse possession within the meaning of article 144 of the Limitation Act.
We are of opinion that the plaintiff's suit is not barred under article 93 of the Limitation Act. See Sundaram v. Sithammal and Abdul Rahim v. Kirparam Daji.
We accordingly confirm the decrees of the Courts below and dismiss the second appeal with costs.