(1) In the suit which is the subject-matter of this appeal the plaintiffs alleged that defendant No. 1 had purchased certain parcel of land specified in the plaint from Musammat Tetari under a sale-deed dated the 16th November, 1938, and about five years afterwards, that is, on the 8th September, 1943, defendant No. 1 transferred the land to the plaintiffs for a consideration of Rs. 500/-. It appears that later on the uncle of Janak Mahton, Husband of Musammat Tetari, brought a title suit claiming title to the land. The suit was decreed by the Muasif on the 11th September, 1946, on the ground that Musammat Tetari had no title to transfer the land because she had re-married after the death of her husband Janak Mahton. An appeal was filed by Dalsingar Singh against the decision of the Munsif. The appeal was dismissed by the Subordinate Judge, and a second appeal to the High Court was also dismissed. The decision of the High Court is dated the 9th December, 1948. The present suit was brought by the plaintiffs on the 10th February, 1951, for a refund of the consideration money of the sale-deed and also for payment of the costs of the litigation. The plaintiffs also alleged that they were in possession of the land conveyed, but they were dispossessed on the 15th September, 1946, by Bihari Mahton. The trial court dismissed the suit. On appeal the decree of the trial court has been affirmed by the lower appellate court.

(2) On the question of possession the lower appellate court has discussed the evidence given by both the parties and has reached the finding that the plaintiffs never obtained possession of the land purchased by them and that the story that they obtained possession and were subsequently dispossessed on the 15th September, 3946, was untrue.

(3) The lower appellate court applied Article 97 of the Limitation Act and held that the period of limitation ran from the date of the sale, namely, the 8th September, 1943, and since the present suit was filed on the 10th February, 1951, the suit was barred.

(4) In the present appeal it was contended on behalf of the plaintiff-appellants that the lower appellate court was wrong in applying Article 97 of the Limitation Act and that the proper Article to apply was Article 116 of the Limitation Act and that limitation should start from the llth September, 1946 which was the date of the decision of the Munsif in Title Suit No. 249 of 194

3. It was urged on behalf of the appellants that the starting point would be from the date of the decision of the High Court in the second appeal, namely, the 9th December, 1948, but even on the assumption that the starting point was the llth September, 1946, which was the date of the decision of the Munsif, the suit would still be well within time.

(5) We do not agree with this submission of Counsel for the appellants. It is true that after the decision of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinath Jin Thakur, ILR 44 Cal 759 : (AIR 1916 PC 182), it has been consistently held by this High Court that a suit for damages for return of consideration or for any consequent costs and damages must be governed by Article 116, even if the suit would apparently fall within the language of Article 97 of the Limitation Act; see, for instance, the decisions of this High Court in Rajendra Narayan Singh v. Lalmohan, AIR 1936 Pat 462 [LQ/PatHC/1936/103] , and Debi Prasad Agarwala v. Haji Syed Mehdi Hasan, AIR 1940 Pat 8

1. Even upon the assumption that Article 116 of the Limitation Act applies to this case, we are of opinion that the starting point of limitation would be not the date of the decision of the Munsif in Title Suit No. 249 of 1943, namely, the 11th September, 1946, but the starting point of limitation in the circumstances found in the present case would be the date of the sale-deed. This question has been elaborately dealt with by Seshagiri Ayyar, J. in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887 [LQ/MadHC/1914/82] at pp, 889-890 : (AIR 1915 Mad 708 at p. 710), as follows :

"On the second question as to when the cause of action for damages arose, a very large number of cases were quoted before me. These cases can roughly speaking be classified under three heads : (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the date of the sale. That is Mr. Justice Bakewells view in Ramanatha Iyer v. Ozhapoor Pathiriserri Raman Nambudripad, 14 Mad LT 524; and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. Hanuman Mandur, ILR 19 Cal 123 and in Bassu Kuar v. Dhum Singh, ILR 11 All 47, are authorities for this position. In the third class of cases also it is said that the cause of action will arise only on the disturbance of possession. No question of concurrence of third parties either to avoid or perfect the title arises in this case. The most recent authority for this proposition is Narsing Shivbakas v. Pachu Rambakas, ILR 37 Bom 538. Mr. Justice Miller in 14 Mad LT 524, gives a qualified assent to the proposition laid down in that case. I do not find Mr. Justice Bakewell expressing his dissent from the view taken in it. I agree with the view taken by Mr, Justice Miller that it is impossible to see how the sale can be said to have been without consideration and consequently void ab initio where possession has been given under the contract ot Kale. The case before me, properly speaking, comes under the second class."

In the present case the lower appellate court has rejected the case of the plaintiffs that possession was given under the sale-deed and there was dispossession of the plaintiffs on the 15th September, 1948. In view of this finding of fact we hold that the present case falls within the first class of cases mentioned by Seshagiri Ayyar, T. in the Madras decision. It has been found that from the very inception the vendor had no title to convey and the vendee had not been put in possession of the property. In a case of this description the starting point of limitation would be the date of the sale. This view is also supported by the decision of the Judicial Committee in Annada Mohan Roy v Gour Mohan Mullick, 50 Ind App 239 : (AIR 1923 PC 189 [LQ/PC/1923/10] ), where it is pointed out that in a suit for recovery of consideration under Section 65 of the Indian Contract Act, the time at which an agreement is "discovered to be void" is, in the absence of special circumstances, the date of the agreement. A similar view was expressed by the Judicial Committee in a later case. Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., 60 Ind Ann 13 : (AIR 1933 PC 63 [LQ/PC/1932/93] ). where it has been stated that in the absence of special circumstances, the time at which an agreement is discovered to be void so as to give rise, under Section 65 of the Indian Contract Act, to a right of suit to recover consideration paid under the contract, is the date of the agreement. For these reasons we hold that the present suit is barred under the provisions of Article 116 of the Indian Limitation Act. It follows, therefore, that there is no merit in this appeal and it is accordingly dismissed with costs.