TMI Blog1923 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the third defendant. On the 19th March, 1913, the four documents were tendered for registration. The executant at first admitted but subsequently denied execution. The result was that the Sub-Registrar refused registration on the 7th May, 1913; this order was confirmed by the Registrar on the 21st October, 1913. On the 19th November, 1913, the plaintiff, along with the third defendant, instituted a suit against the first defendant to enforce registration of the documents under the provisions of Section 77 of the Indian Registration Act. The defendant contended that the deeds had been materially altered after he had executed them, and pleaded in substance that the documents presented for registration did not represent the real agreement between the parties. The Subordinate Judge found against the plaintiff and dismissed the suit on the 3rd March, 1915. On appeal to this Court, Fletcher and Newbould, JJ. on the 24th May, 1917, remitted the case to the trial Court for a finding on the issue whether a document which purported to be a bainanama or deed of agreement dated the 6th November, 1912, was executed between the parties. The Subordinate Judge, after full enquiry, held on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways ready and, willing to give up possession to the plaintiff. He further urged that the claim for mesne profits for a, period antecedent to three years prior to the institution of the suit was barred by limitation. On these pleadings, fifteen issues were raised on the 16th July, 1921. The seventh issue was cancelled as unnecessary on the 10th March, 1922. The remaining issues were in the following, terms: 1. Has the plaintiff any cause of action against defendant No. 1? 2. Is the suit barred under Order 2, Rule 2, Civil Procedure Code and Section 42 of the Specific Relief Act? 3. Is the settlement made by defendant No. 1 with defendant No. 2 not affected by the doctrine of Us pendens? 4. Is the suit not maintainable for the reason stated in paras. 3 and 8 of the written statement of defendant No. 1? 5. Were some of the findings of the previous litigation beyond the scope of that litigation? Were some of the findings without jurisdiction, ultra vires and self-contradictory, as stated in para. 3 of defendant No. 1's written statement? Is the defendant bound by all the findings of the previous litigation? Are the contentions raised by defendant No. 1 in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's favour and that the plaintiff committed no forgeries by making material alteration therein after they had been executed by this defendant, as set up by him. 2. That in the present suit the case of this defendant now is that the abovementioned documents do not express the real intention of the parties and do not embody the terms settled between them, that there are new terms embodied therein to which the defendant never agreed and that those terms were embodied in the documents fraudulently at the instance of the plaintiff with the intention of defrauding the defendant. 3. That the said fraud was committed in this way : - That by the terms originally settled the defendant reserved for himself by way of rent the sums of ₹ 300 and ₹ 900, in all ₹ 1,200; but by the deeds as they now stand, it may be a matter of doubt whether the plaintiff or this defendant is to get the said sum as rent. The plaintiff fraudulently embodied in the deeds such terms in order to secure for himself the said sum otherwise clearly recoverable by this defendant, according to the terms settled for the maurasi leases. 4. That this defendant is not aware when the new terms wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g terms: It is ordered that the suit be decreed with costs. That the plaintiff's right to the disputed properties as claimed in the plaint be declared and that he do get khas possession of the same in those rights : she shall get mesne profits and damages in respect of those properties from defendant No. 1 from 4th Magh 1319 to 9th Jyet, 1322 and from defendants Nos. 1 and 2 from 10th Jyet, 1322 to the date of the plaintiff's getting possession or till the expiration of three years from the date of the decree (whichever event occurs first); the amount of mesne profits and damages which the plaintiff is entitled to get, will be ascertained afterwards. 9. The defendants have preferred separate appeals to this Court against the decree of the Subordinate Judge. On behalf of the first defendant, the decree has been assailed substantially on three grounds, namely, first, that the principle of res judicata has been erroneously applied; secondly, that the claim for mesne profits for a period antecedent to three years prior to the date of the suit is barred by limitation; and, thirdly, that upon a true construction of the documents which contain contradictory clauses the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Fees Act, which provides in Schedule II, Article 17(vi) that the fee payable on a plaint and memorandum of appeal from a decree in such a suit is a fixed, fee of ₹ 10 (recently raised to ₹ 20) only, and not an ad valorem fee under Section 7(4)(c) upon the value of the properties comprised in the document : Jantoo v. Radha (1882) 8 Cal. 515; Savrarimuthu v. Alagiam; Ramu Aiyar v. Sankara (1907) 31 Mad. 89; Mahomed v. Fatima (1895) 21 P.R. 1895. But although the scope of the enquiry in a suit under Section 77 may be of a restricted character, it does not follow that the doctrine of res judicata is excluded from full operation. The decision of the Judicial Committee in Badar Bee v. Habib (1909) A.C. 615; Sheoparsan v. Ramnandan A.I.R. 1916 P.C. 78, and Gopallal v. Purnachandra A.I.R. 1922 P.C. 253, as to the final effect of decisions in probate and administration proceedings and in Ram Chandra v. Ram Chandra A.I.R. 1922 P.C. 80, as to the conclusive character of decisions of Land Acquisition Courts, even upon questions of title, shows that the argument of the appellant is not well-founded on principle. In this connection, we must bear in mind that as pointed out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat fits direct object. This limitation to the rule appears to me, generally speaking, to be consistent with reason and convenience, and not opposed to authority. I am not now referring to the law applicable to certain prize and admiralty questions, which are governed by principles in some respects peculiar. On the whole, I am not at present prepared to say that, according to the proper sense of the expression, the judgment of the Ecclesiastical Court between these parties was directly upon the point of the alleged illegitimacy of Robert James Smith, and had the establishment of that supposed fact for its proper purpose and object, so as to render his illegitimacy rem judicata in between the parties on a question of distribution. 11. We must further remember that, as was observed by the Judicial Committee in Soorjomonee Dayee v. Suddanund Moha (1873) 12 B.L.R. 304 (P.C.), if both parties invoked the opinion of the Court upon the question, if it was raised by the pleadings and argued, the conclusion cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s words and clauses had been interpolated, after execution and without his consent. He asserted that the deeds as engrossed accurately represented the contract between the parties, I that he executed them in that state, and that they were then materially altered by the plaintiff, with the result that they no longer represented the real agreement. The trial Court accepted his version. The High Court on appeal directed an enquiry into genuineness of a document which purported to be the draft agreement between the parties. On the result of the supplementary investigation by the trial Court, the High Court pronounced the f draft agreement to be genuine and held that the disputed documents were in the form provided by the contract between the parties. This was the ground work of the decision of the High Court, when it came to the conclusion that the documents had not been altered after execution and must be deemed genuine. In our opinion, the defendant is not competent to re-agitate the question of the conformity of the documents to the contract between the t parties it is no longer open to him to contend that the documents had been materially altered after execution the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was taken up, provided! that the second suit grows out of the judgment in the first. In our opinion, the attempt made by the appellant to circumvent the decision in the previous suit cannot succeed and the doctrine of res judicata presents an insurmountable bar. As regards the application of the rule of limitation to the claim for mesne profits we have been pressed to hold that Article 109 of the first schedule to the Indian Limitation Act bars the claim for a period antecedent to three years prior to the institution of this suit. That article provides that a suit for the profits of immovable property belonging to the plaintiff, which have been wrongfully received by the defendant, must be instituted within three years from the date when the profits are received. The argument is that as this suit was instituted on the 28th April, 1921, the plaintiff is not entitled to mesne profits for a period prior to the 28th April, 1918, whereas the Subordinate Judge has allowed the plaintiff mesne profits from the 17th January, 1913, the date of execution of the four leases which form the root of his circle. The question thus raised is apparently one of first impression and is by no means fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the claim was barred because the suit had not been brought-within three years from the date wheat each instalment of rent fell due, was overruled, and it was held by the Judicial Committee that the cause of action accrued upon the reversal of the auction sale and the consequent revival of the obligation to pay the rent. The same principle was applied in Bassu Koer v. Lala Dhwn Singh (1888) 11 All. 47 (P.C.). In that case, a debtor agreed to convey certain property to his creditor and to set off the debt against part of the consideration for the conveyance. A sale deed was executed, but a dispute arose as to whether it had been executed in accordance with the contract. Litigation was commenced by the debtor to enforce the agreement, but he was unsuccessful. The creditor then sued to recover the debt and was met by the plea of limitation. The Judicial Committee held that the time-began to run only when the agreement became wholly ineffectual and that from that date a fresh obligation was imposed upon the debtor to pay his debt. These cases illustrate the proposition that ordinarily limitation runs from the earliest time at which an action can be brought and after time has comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt does not operate against the landlord during the continuance of the tenancy and Priyasakki v. Bireshwar (1916) 44 Cal. 425, where it was ruled that adverse possession against mortgagor does not operate against a simple mortgagee who is not entitled to immediate possession. The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed : Coburn v. Colledge (1897) 1 Q.B. 702; Gelmani v. Morriggia (1913) 2 K.B. 549. The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief : Whalley v. Whalley (1816) 1 M.R. 436. The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely, whether the first defendant is entitled to separate sets of James on a proper construction of the four pattas. We have been pressed to hold that, as this matter will be tried when the mesne profits are assessed, no decree for possession should have been made in the terms stated in the judgment. We see no substance in this argument, for whatever construction may be placed on the four leases, the plaintiff is entitled to possession thereunder. The exact nature of that possession, no doubt, depends upon the true interpretation of the leases; but such interpretation is really material for the assessment of mesne profits. We shall, consequently, leave it to the Subordinate Judge to determine the true construction of the four leases and their legal effect. We may add that we have been told by the appellant that not only does each document contain irreconcilable clauses, but that each document taken as a whole cannot be reconciled in all respects with the others. This is a matter which will be determined by the Subordinate Judge and the parties will be at liberty to adduce such evidence as may be legally admissible to assist the Court in the construction of the documents. 14. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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