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TMI Blog1969 (3) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ped paying rent to the plaintiff from the year 1950 and when notice was sent to him in the year 1952 he denied the plaintiff's title. Another notice was, therefore, given to the defendant in the year 1954 terminating his tenancy. The plaintiff, therefore, sought the reliefs of possession and rent and damages for use and occupation. The suit was contested on the ground that the defendant was not the tenant of the plaintiff but had made the constructions on the land after obtaining permission from one Sm. Ham Kaur, the owner of the land. The trial Court held that the plaintiff was the owner of the land in dispute and Sm. Ram Kaur had no interest in that land and decreed the suit. The lower appellate Court did not disturb the finding of the trial Court on the point of the title of the plaintiff to the land in suit. It however, arrived at the conclusion that the plaintiff had failed to prove the alleged tenancy and had also failed to prove that he had been in possession of the land in suit at any time within twelve years of the date of the suit and the defendant's contention that he had been in possession over that land for a period much exceeding twelve years could be true. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Limitation Act. 8. A perusal of the plaint would show that the plaintiff has nowhere alleged that he had been dispossessed or had discontinued the possession of the land in suit As stated earlier, the allegations made by him in the plaint were that he had purchased the land in the year 1946 and obtained proprietary possession over it, that a portion of the land had been let out by him to the defendant for building a thatched construction and that the defendant had stopped paying rent to him from the year 1950 and had denied his title in the year 1952. The suit was originally brought on the ground that the premises had been let out to the defendant but later the plaint was amended at the request of the plaintiff and he was allowed to sue in the alternative on the basis of his title, on payment of the requisite court-fees. The material allegations in the plaint remained unaltered. Thus there is nothing in the plaint from which it can be inferred that the defendant had been in possession over any part of the land in suit for more than 12 years or had ever dispossessed the plaintiff. 9. Where a plaintiff is suing for possession on the basis of dispossession the burden li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those facts, and having got the right Article to find out whether the suit is within time or not. The Full Bench case of Bindhyachal Chand v. Ram Gharib Chand, 1934 All LJ 973 = (AIR 1934 All 993 (FB)) fully supports this view. 13. The findings of fact recorded by the lower appellate Court were as mentioned below:-- (a) The plaintiff and the predecessor-in-interest of the plaintiff had title to the land in suit. (b) There had been some litigation between the plaintiff on the one hand and Smt. Ram Kaur on the other regarding land lying to the south of the land in suit. The thatched construction of the defendant was not on the land regarding which there had been some litigation before. (c) The plaintiff had failed to prove that he had let out a portion of the land in suit to the defendant at any time within twelve years of the date of the institution of the suit. (d) The plaintiff had also failed to prove that he or his predecessor-in-interest had been in actual or constructive possession over the land in suit within twelve years from the date of the institution of the suit. (e) The suit was, therefore, barred by Article 142 of the Limitation Act. 14. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Full Bench case of Abdul Ghani v. Mst. Babni, 1903 All WN 18 (FB) that where the plaintiff alleged that the the defendant was the tenant but it was subsequently found that the plaintiff was the owner and the defendant though not a tenant was occupying the premises with his permission the plaintiffs suit should be decreed on the basis of title. The case of Abdul Ghani, 1903 All WN 18 (FB) (Supra) was considered by this Court again in the same year in the Full Bench case of Balmakund v. Dalu, 1903 All WN 112 (FB). In that case the plaintiff came to Court alleging that he was the proprietor of a certain building and that he had leased a part of the said building to the defendant who, however, refused to pay the rent agreed upon and he sought to have the defendant ejected and to recover possession of the portion of the building occupied by him. No specific issue dealing with the plaintiff's title was framed, but evidence as to title was given on both sides. It was held that even though the plaintiff had failed to make out his case as to letting, he nevertheless was entitled to a decree on his title unless the defendant could show a better one. 17. It was because of the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse possession. It is obvious that Article 144 of the First Schedule to the Indian Limitation Act was applied to the facts of the case. 21. It is significant to note that in the case of Jai Chand, 17 All LJ 814 = (AIR 1919 All 403 (2)) (supra) the lower appellate Court had relied upon the case of Enayat Husen v. Ali Husen, (1898) ILR 20 All 182 for the proposition that even in a case governed by Article 144 the plaintiff must not only prove a legal title to possession but a subsisting title, not barred by the law of limitation. However, when the case came to High Court a Division Bench of this Court observed that in a case governed by Article 144 it was not at all necessary for the plaintiff to establish a subsisting title not barred by the law of limitation and the burden was on the defendant to prove adverse possession. The learned Judges, while overruling the case in (1898) ILR 20 All 182 (supra) rightly observed if we may say so with respect, that the decision in that case was inconsistent with the Privy Council decision in Mohim Chunder Mozoomdar v. Mohesh Chunder Neoghi, (1889) ILR 16 Cal 473 (PC) and ILR 39 Mad 617 = (AIR 1916 PC 21) (supra). 22. It is now well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenancy was concerned, the title being with the plaintiffs they were entitled to succeed unless the defendant could prove that the plaintiff's title had been lost on account of adverse possession on the part of the defendant. It was also held that there being no proof that the defendant had been in adverse possession for more than twelve years the suit was bound to be decreed. 26. Next comes the case of AIR 1933 All. 775 (supra). The plaintiff had sued the defendant for possession on the ground that he was the owner of the premises in suit which had been let out to the defendant, who had denied his title. The defendant claimed adverse proprietary possession for more than seventeen years. It was held that both on the facts of the case, the earlier case law on the subject and for the reason that Article 142 of the First Schedule to the Limitation Act did not apply to suits based on title, Article 144 of the First Schedule to the Limitation Act would apply. 27. As mentioned earlier, the view taken in the cases of Kanhaiya Lal, AIR 1929 All. 753 (supra) and Kalian, AIR 1933 All. 775 (supra) that Article 142 of the First Schedule to the Indian Limitation Act applied only to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of this Court was that of Sangam Lal v. Ganga Din, AIR 1946 All. 389. It was this case which unsettled the view taken in all the cases decided up to the year 1933. It was held that in the circumstances of the present case the correct Article applicable was Article 142 of the First Schedule to the Limitation Act. The plaintiff had filed a suit for possession of a certain house alleging that the defendants were the plaintiff's tenants and had not paid rent from one year before the institution of the suit. It was also alleged that the plaintiff's title had also been denied by the defendants. The finding of fact recorded by the court was that the plaintiff had succeeded in proving his title to the house and that the defendants had been in uninterrupted possession of the house for more than twelve years before the date of the institution of the suit. It was also held that the defendants were not the tenants of the plaintiff as the house was never let out to the defendants by the plaintiff or his predecessor-in-interest. It was held by the court that on these findings the allegations made in the plaint did as a matter of fact amount to an allegation that the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is title. His title was held to be proved, though the allegations regarding defendant's tenancy could not be substantiated. The defendant appeared to be in permissive user of the property. It was held that Article 144 of the First Schedule to the Limitation Act, 1908, applied to the facts of the case. 32. The Nagpur High Court in the case of Meherban Lalli v. Yusufkhan Kallu. AIR 1939 Nag. 7, held that in a suit for ejectment of a tenant where the title of the plaintiff was also relied upon and established but it could not be proved that the defendant was the plaintiff's tenant and it was found that the defendant had been in possession of the premises for more than twelve years, Article 142 could not apply for the simple reason that it could not be said to be a case where the plaintiff was dispossessed or had discontinued possession. It was held that Article 144 of the First Schedule to the Indian Limitation Act, 1908, applied. 33. In a suit governed by Article 144 the fact that the plaintiff has failed to establish that he has been in possession of the property in suit at any time within twelve years of the suit is by no means material, as was found in the case of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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