1. This is a second appeal filed by the original plaintiffs against the judgment of the Second Extra Assistant Judge, Nagpur, in Civil Appeal No. 55 of 1963 dated 19-2-1964, allowing the appeal filed by the original defendant and dismissing the suit filed by the plaintiffs.
2. The plaintiffs filed a suit for possession of the suit house on the basis of title and also for recovery of Rs. 540/- on account of mesne profits for use and occupation of the said house by the defendant. It was contended by the plaintiff that the house bearing number 1326/0-3 situated in Circle No. 21, Balaji Mandir Road, Itwari, Nagpur, originally belonged to one Narayan Paikaji Gurao of Nagpur. After his death it was inherited by his wife Gaurabai. She sold this house to one Mannulal in the year 1925. Since then Mannulal continued to be in possession of the said house in his own right and got the same constructed at his own costs in the year 1936. As it was thought necessary that Maina, sister of Narayan, should also give her consent to the said transfer such a consent deed was obtained on the 4th October, 1925 by which she purported to give up her right in respect of the property. Mannulal contended in possession till 20-11-1958 on which date he should the suit house to the present plaintiffs. As that time the defendant was in possession of the suit house either with the consent of Gaurabai or as her tenant. The plaintiffs after the purchase of the house filed an application before the Rent Controller for permission to terminate the tenancy of the defendant. After getting the necessary permission, the plaintiffs filed a suit in the Court of the Civil Judge, Senior Division, which was registered as Civil Suit No. 1014-A of 1959. This suit was dismissed on 25-6-1960. The question as to whether the defendant was a tenant of Mannulal or otherwise was the subject-matter of the decision of that suit. In that suit it was held that the plea of tenancy was not established. An appeal filed against the said decision of the Civil Judge, bearing Civil Appeal No. 128-A of 1960, was also dismissed. After the decision in that appeal the present suit was filed by the plaintiffs on the basis of their title, on 7th December, 1961. In the present suit the plaintiffs have contended that the defendant was in possession even before his vendor's sale-deed of the year 1925 and at any rate from 1942. It was thereafter contended that the defendant had paid the rent to Mannulal upto the end of June 1958 and also for July, 1958. A reference was also made to a declaration given by the defendant to the Nagpur Municipal Corporation to the effect that the he was the tenant of the house and this declaration was given on 27-4-1952.
3. The defendant denied the title of the plaintiffs. He contended that there was no relationship of the landlords and tenant between the plaintiffs and himself. Though the defence of limitation was not taken in specific terms, it was stated that the defendant and his father have been continuously in possession of the premises since before 25 years of the date of the suit. In effect, therefore, right on the basils of adverse possession was claimed. This was also construed to be a plea on the ground of limitation.
4. The trial Court after framing necessary issues came to the conclusion that the plaintiffs have proved their title to the suit house, and therefore, decreed the claim of the plaintiffs.
5. Against this judgment and decree an appeal was filed which was heard and decided by the Second Extra Assistant Judge, Nagpur, in his judgment referred to above. The learned Second Extra Assistant Judge held that the present suit filed by the plaintiff is governed by Article 142 of the Limitation Act, 1908 and that neither the plaintiffs nor Mannulal were in possession of the suit house at any time 12 years next before the suit, and therefore, the suit was barred by limitation. In this view of the matter, the appeal was allowed and the plaintiffs' suit was directed to be dismissed. Against this judgment the present second appeal has been filed by the original plaintiffs.
6. Shri. V. R. Manohar, who appears for the appellants plaintiffs before me, contended that the learned Judge of the first appellate Court committed an error of law in holding that the present suit was governed by Article 142 of the Indian Limitation Act, 1908. According to Shri Manohar, the suit was not for possession of immovable property on the ground that the plaintiffs have ben dispossessed or their possession has been discontinued at any time. The suit is a pure and simple suit for possession based on title. In the suit neither dispossession or discontinuance of possession was ever alleged. In this view of the matter, the judgment of the learned Judge of the first appellate Court is illegal.
7. On the other hand, it was contended by Shri. K. G. Chendke,. who appears for the respondent-defendant before me, that the allegations in the plain it properly construed clearly amount to saying the the tenant repudiated the title fo the plaintiffs in the previous suit and a finding was given that the plaintiffs have failed to prove the relationship of landlords and tenant between the plaintiffs and the defendant. Therefore, from the plaint it is quite clear that it is a case of discontinuance. As an allegation was made by the plaintiffs that the defendant was a tenant and they have failed to prove the same it will have to be held that the discontinuance of possession took place on the very day on which the defendant is alleged to have been inducted in the suit house. Shri Chendke further contended that Ex. 54, which is said to be a declaration given by the defendant before the Municipal Corporation to the effect that he was a tenant of the premises, is not admissible in evidence, because in the prior suit it was held that the present defendant was not proved to be the tenant of the plaintiffs. No evidence to contradict the said finding given in the previous suit can be admitted even for collateral purposes, nor any finding which will go contrary to the finding recorded in the previous suit can be given in the present suit. In view of this matter according to Shri. Chendke, the judgment of the first appellate Court is in accordance with law.
8. For appreciating the controversy involved in this appeal it is necessary to reproduce Articles 142 and 144 of the Indian Limitation Act, 1908, which are as under:
______________________________________________________________________________________Period of Time from which period Description of Suit limitation period begins to run.______________________________________________________________________________________ 142. For possession of immoveable Twelve The date of the dis-property when the plaintiff years possession or disconwhile in possession of the tinuanceproperty has been dispossessed or has discontinued the possession.144. For possession of immoveable Twelveproperty or any interest years When the posses- therein not hereby otherwise sion of the defen-specially provided for. dant becomes ad-verse to the plain- tiff.______________________________________________________________________________________
9. In support of his contentions Shri. Manohar relied upon the various decisions of the Supreme Court and other High Courts. He brought to my notice a decision of the Supreme Court in Mt. Murti Dusadhin v. Mohammad Mir Khan. : 1SCR20 and particularly observations made in para 10 of the judgment which reads as under.
'Construing the plaint as a whole, it is clear that the plaintiff never alleged dispossession or being out of possession. He asserted ownership of the suit land and claimed that he was in possession. Section 144, Criminal P.C. proceedings seemed to have cast a doubt on his title and he accordingly brought a suit for a declaration. It is true that in the alternative he prayed for a decree for possession and mesne profits. He was careful even in this alternative prayer to say that he could only be deemed to be dispossessed by Section 144 proceedings. The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts it seems to us that it is Article 144 and not Article 142 that applied.'
Another decision to which a reference was made by Shri manohar is reported in Kassar Singh v. Balvant Singh, : AIR1967SC487 . He drew my attention to the observations in para 16 of the judgment which are to the following effect :
'.......................... As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Article 142 in the present case and the appellant could only succeed if he could prove adverse possession under Article 144 for over 12 years. The decision of the High Court on the question of limitation is correct.'
Mr. Manohar also relied upon a decision of the Supreme Court in Shivagonda v. Rudragonda, : 2SCR787 and particularly on the observations made by the Supreme Court in para 5 of the Judgment, namely :
'Article 142 has no application because the suit is not against the defendant on the ground that he has been dispossessed by him but against a person who is not entitled to possession. The defendants did not disposses the plaintiff, and as such Article 142 is not applicable at all.'
Mr. Manohar has further contended that as to whether Article 142 or Article 144 of the Limitation Act will apply to the facts of the case will have to be decided on the basis of the averments made in the plaint. In this particular case no averments regarding possession or dispossession or discontinuance of possession have been made at all. In these circumstances the present suit is not at all governed by Article 142. he further contended that the terms 'dispossession' or 'discontinuance' of possession only mean a loss of possession which can be referred to somebody going into possession and driving another out of possession/ The dispossession and discontinuance of possession contemplated by this Article is a physical one and not notional. In this particular case no such allegation has been made in the plaint, and therefore, the learned Judge was not right in coming to the conclusion that Article 142 of the Limitation Act will apply to such a suit. On the contrary the residue Article, namely, Article 144 of the Limitation Act will be applicable to the present suit.
10. In para 15 of the written-statement the defendant raised a plea of adverse possession. Therefore, the burden was upon the defendant to prove the same and since he has failed to prove his adverse possession the plaintiffs are entitled to a decree. He has further contended that only because the plaintiffs have alleged that the defendant was their tenant and he has failed to prove the same it cannot be said that there was discontinuance of possession. For this proposition he relied upon the following cases;
(1) Meherban Lalli v. Yusufkhan Kallu AIR 1939 Nag 7;
(2) Sulaiman v. Dawood Khan Sahib : AIR1935Mad754 ;
(3) Mt. Maluk Zadi v. Mt. Anwar Sultan. AIR 1950 Pesh 31; and
(4) Qadir Bux v. Ramchand : AIR1970All289 .
The case reported in : AIR1970All289 of the Allahabad High Court (cit. supra) is a Full Bench decision in which the resume of the law on the subject has been taken. In paras 10 and 11 of the said judgment it is observed by the Allahabad High Court as under :
'10. There is obviously some distinction between the mere dis possession or discontinuance of the possession of the plaintiff and the adverse possession of the defendant. Ordinarily an owner of property is presumed to be in possession of it and such presumption is in his favour where there is nothing to the contrary. It would, therefore, follow that an owner of property starts with the presumption in his favour that he is in possession of his property, but where the plaintiff himself admits or it is proved that he has been dis possession by the defendant, and, therefore, is no longer in the proprietary possession of the property in suit, at the time of the institution of the suit, the Court cannot start with the presumption in his favour that the possession of the property was with him.
11. No doubt in many cases the distinction is very fine and the line of demarcation between dis possession and adverse is thin but the question in each case is one of burden of proof and it is incumbent on the plaintiff when he has been dispossessed or had discontinued his possession to establish the date of dis possession or discontinuance of possession and to show that it was within twelve years of the institution of the suit (vide Article 142 of the First Schedule to the Limitation Act).'
In para 30 the said judgment the Allahabad High Court further observed as follows :
'30. The main point for consideration is whether in such circumstances it can be said that the plaintiff had been dispossessed or had discontinued his possession within the meaning of Article 142 of the First Schedule to the Indian Limitation Act. Tjhe term 'dispossession' applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occured when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person is possession but in accordance with his wishes and active consent. The term ' discontinuance' implies a voluntary act and abandonment of possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, but this cannot be assumed. It must be either admitted or proved.
So strong in fact is the position of the rightful owner that even when he had been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by his major for howsoever short a time before he has actually perfected his title by twelve years' adverse possession the possession of the true owner is deemed to have revived and he gets a fresh starting point of limitation vide Gurbinder Singh v. Lalsingh : 3SCR63 . Wrongful possession cannot be assumed against the true owner when according to the facts disclosed by him he himself had voluntarily handed over possession and was not deprived of it by the other side.'
Thereafter the Full Bench answered the question referred to them in the following terms:
'Our answer to the question referred to the Full Bench is as follows : - If a plaintiff claims possession against a defendant alleging him to be his tenant and fails to prove the tenancy set up by him, Article 142 of the First Schedule to the Indian Limitation Act, 1908, will not apply and the only Article that can apply is Article 144 of the First Schedule to the Limitation Act.'
11. On the other hand, Shri Chendke relies upon the following decisions of the various High Courts, namely,'
(1) Gangoobai v. Soni 1942 Nag LJ 99;
(2) Official Receiver of East Godavari at Rajahmundry v. Chava Govindaraju. AIR 1940 Mad 798
(3) Beharilal v. Narain Das AIR 1935 Lah 475
(4) Premeswar Das v. Madhab Chandra Das AIR 1950 Ass 55
(5) Venkiteswara Iyer v. Chariyathu AIR 1957 Trav Co 223;
(6) Lingamma v. Putte Gowda AIR 1963 Mys 1; and
(7) Adhikarimayum., v Heikrujam Tombi Singh, AIR 1973 Gau 38.
Shri Chendke has strenuously relied upon a Full Bench decision of the Mysore High Court in Lingamma's case (cit supra) and particularly the observations made by the Mysore High Court in paras 3, 10 and 11 of the judgment which are as under:
'(3) Before proceeding to examine the decisions on the subject, we shall first go to the language used in Article 142. Article 142 speaks of suits for possession of immovable property when the plaintiff while in possession of the property, has been either dispossessed or has discontinued his possession. Article 144 is a residuary Article. It relates to suits for possession of immovable property or any interest therein not otherwise specifically provided in the 'Act'. It is quite clear, nor is it disputed, that Article 144 can only apply to cases which are not governed by any other Article in the 'Act'. In the present case the controversy centers round Articles 142 and 144. No other Article is relevant for our purpose. Therefore, we have to first see whether the question formulated could be reasonably brought within the ambit of Article 142.
In a case where dispossession or discontinuance of possession is either admitted or proved, there is no difficulty. But difficulty arises where no specific evidence is available about dispossession of the true owner or his discontinuing his possession. When then is the position in the absence of evidence to the countrary, the true owner of the property must be deemed to have been in possession of the property. The dictum possession follows title is well known and well recognized by Courts. The dictum possession follows title is well known and well recognized by Court. Therefore, when a person establishes his title to the property, law presumes that either he or his predecessor-in-title was deemed to have been in possession of the property, at some point of time, if the plaintiff either admits or it is proved that he was not in possession of the suit property at the time of the institution of the suit, then necessarily he must have either been dispossessed or he must have discontinued his possession at some point of time poor to the suit. 'Discontinuance' of possession relates to a case where a true owner consciously gives up his possession and some third party gets into possession. For the reasons mentioned already, every suit for possession based on title attracts itself the mischief of Article 142. It a person having title to the property sues for possession of the suit property on the allegation that the defendant was his tenant but fails to establish the tenancy pleaded, then it follows that he must have either been dispossessed or that he had discontinued his possession prior to suit. Where a plaintiff pleads permissive possession and the defendant admits his possession but denies that he is in permissive possession (in either case the defendant's possession being admitted) if the plaintiff fails to establish his case, then it follows that the defendant's possession was without the consent of the plaintiff. From the time the defendant holds the property without the consent of the plaintiff, then the plaintiff must be deemed to have been dispossessed. In such a case, law requires the plaintiff to establish that he was in possession of the suit property within 12 years from the dare of the suit. Otherwise, his rights get bared under Article 142.
(10) Now coming to question No. 3, the general principles enunciated earlier apply with equal force to this question as well. Further, several Court have taken the view that when the plaintiff's allegation that view that when the plaintiff's allegation that the defendant was in permissive possession of the suit property is not established, the allegation in question amounts to an admission of discontinuance of plaintiff's possession and therefore his case falls under Article 142. See : AIR1946All389 and (1951) 29 M LJ 141. This appears to be the correct view both in principle and on authority.
(11) In the result, our decision on question No. that the plaintiff has to prove not only his title to the suit property but also his possession of the same within twelve years of the suit: on question No.2 we hold that the relevant Article is Article 142 of the 'Act', and on question No.3 we hold that the plaintiff. Who seeks to eject persons from immovable property claimed by him, on the ground that although they entered into such property as tenants, were in wrongful possession thereof but fails to prove his allegations has to establish his possession within 12 years of the suit'.
12. Thus there are conflicting views on this subject and it has to be decided as to which of the view should be preferred in this behalf. The Mysore high Court has relied upon the decision of the Madras High Court reported in AIR 1940 Mad 789 he said decision of the Madras High Court has also been referred to by Supreme Court has also referred to another decision of the Lahore High Court in Air 1935. Lah 475 which Shri Chendke relies.
13. The Supreme Court in Mt. Murti Dusadhin's case, : 1SCR20 of its judgment has observed as under:
(7) The learned counsel for the appellant urged that in an action in ejectment, one of the things that the plaintiff must prove is his title to immediate possession. This is true and there is no dispute, about this proposition. He further urges that where the plaintiff does not admit tenancy, although the defendant alleges tenancy, he must show possession within 12 years of the suit. He says that the defendants have admitted title of the plaintiff but not possession. To support his proposition, the learned counsel for the appellant, apart from patna cases which have been overruled by the Full Bench relied on the Official Receiver of East Godavari v. Chava Govinda Raju. ILR (1940) Mad 953: AIR 1940 Mad 789 and ILR 16 lah 443 AIR 1935 Lah 475. In the Madras case, an auction purchaser was obstructed by a person who claimed it as his won ancestral property. The auction purchaser sued fro declaration and injection. The facts are quite different and in none of the cases discuss by the learned Chief justice in his judgment a defendant had claimed possession under the plaintiff had claimed possession under the plaintiff but had asserted right by adverse possession.
(8) in ILR 16 Lab 443 : AIR 1935 lah 475 the facts as stated in the head-note were these:
'The plaintiffs instituted a suit for possession of a house against N.B. and N.D., alleging that in 1927 they had rented the house to N.B. who had sublet it to the defendant N.D. The plaintiff stated in the plaint that they were the owners of the house and that they had instituted suit previously for recovery of rent against both the defendants, but N.D, had asserted his been dismissed against him, but had been decreed against N.B.
The High Court held that the plaintiffs clearly pleaded possession and dispossession. i.e., possession through their tenant N.B. and dispossession by the lather's sub-tenant N.D., when he set up a title of his own. This case is again distinguishable for the sub-tenant had clearly asserted his won title and denied that of the plaintiff'.
14. It is no doubt true that the Mysore decision has not been referred to by the Allahabad High Court in : AIR1970All289 . (cit supra) which is also a Full Bench decision. But, in my opinion, the view taken by the Allahabad High Court in : AIR1970All289 lays down the correct law on the subject.
15. In Nare Shindu v. Krishna Shindu, AIR 1938 Bom 210, this Court had an occasion to deal with this aspect of the matter.. In this context it is observed by this Court as under:
'The first question which arises in this case is. Whether the suit falls within Article 142 or Art. 144, Limitation Act. Its clear that these two Articles apply to two different sets of circumstances. Article 142, on the face of it, is restricted to a suit based on the plaintiff's prior possession lost by dispossession, and to order to bring the suit within Article 142, the plaintiff must allege that he was originally in possession of the property which is the subject-matter of the suit, and that he has been dispossessed by the defendant. In other words, he must prove that he was dispossessed within 12 years. The whole question under Art. 142 is, whether more than 12 years have elapsed since the plaintiff was dispossessed; and if the plaintiff fails to prove that the onus obviously being upon, him-the defendant is not called upon to set up his adverse possession. Article 142 makes no reference to the defendant or to his possession. That is done in Article 144. Article 144 is a residuary Article, and only applies if no other Article's applicable. The Article, in my opinion, applies only when there is no allegation in the plaint that the plaintiff has been in possession and has been dispossessed. It applies when the suit is based on the ground that the plaintiff is the owner of the property and the defendant is a trespasser having no right to remain in possession. This distinction has been well put by Telang J. in ILR 1890 14 Bom 458: Fakir Abdulla v.. Babaji Gangaji at p. 462; and has been accepted not only by this Court but by all other High Courts it, this counrty.'
The very basis of a suit under Article 142 of the limitation Act is the prior possession of a party and his subsequent dispossession or discontinuance of possession. If the suit is merely based on the title, then obviously Article 142 of the Indian limitation Act will not apply to such a suit. To the same effect are the observations of the Supreme Court in : 3SCR63 . Wherein in para 6 of the judgment it is observed;
'In order that Article 142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession'.
in the present case such allegation: have not been made in the plaint. Only because on a previous occasion the plaintiff had alleged that the defendant was their tenant and they had failed to prove the same, it cannot be assumed that there was discontinuance of their possession from their mere failure to prove their allegation of tenancy. Further it. the present case it cannot be said that the allegations of lease made by the plaintiffs were found to be false. In the provisos proceedings the plaintiffs had only failed to prove the same. Thereafter the present suit was filed by them on the basis of their title against the defendant, who was not entitled to remain in possession of the house. in these circumstances, in my opinion, to the present suit Article 142 of the Indian limitation Act will not apply. Once it is held that Article 142 will not apply to the instant suit, the only other Article which could apply to such a suit is Article 144 of the limitation Act.
16. This aspect can be considered from another point of view. it is one of the principles of interpretation of Statute that the subsequent legislation can be looked at in order to see as to what could be the proper construction to be the proper construction to be put upon an earlier Act where the earlier Act is ambiguous or the wording used therein has resulted in creating confusion. If both the laws are on the same subject and if the provisions of the earlier Act which are said to be construed are open to diverse meaning., then the subsequent Act to diversemeaning, then the subsequent Act can usefully be referred to for the interpretation of the earlier legislation. A reference to this principle is made at page 147 of Craies on Statute Law and it is observed:
'In Cape Brandy Syndicate v. I.R.C., 1921 2KB 403. lord Sterndale M.R.said:
'I think it is clearly established Att. Gen. v. Clarkson 1990-1QB 156 that subsequent legislation may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguously quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation, but if there be any ambiguity in the earlier lelgislation, then the ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier 'This', said Lord buckmaster in Ormond Investment Co. v. Betts. (1928) AC 143 'is in my opinion, an accurate expression of the law, if by 'any ambiguity, is meant a phrase fairly and equally open in drivers meanings' In the same case lord Arkinson said: Sargant L.J. Seems to hold that legislative interpretation of the statute of 1918 is to be found in this Section 26. of the Act of 1924 and therefore the case comes within a well-recognised principle dealing with the construction of statutes, namely obscure or ambiguous or readily capable of more then one interpretation, light may be thrown upon the true view to be taken of it by the aim and provisions of a subsequent statute'. Maxwell on interpretation of Statutes has also referred to the same principle, namely, 'not only may the later Act be construed by the light of the earlier, but it sometimes furnishes al legislative interpretation of the earlier'. Thereafter it is observed that 'subsequent legislation on the subject may be looked into in order to see what is the proper construction to be put upon an earlier Act. A reference to this principle has also been mamboed by the Full Bench of Allahabad High Court in a case reported in Sher khan v. State : AIR1958All733 wherein it is observed: 'Subsequent legislation on the same subject may be looked to in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous'.
17. The later legislation on the subject is the Lamination Act of 1963. Articles 64 and 65 are the Articles which have been enacted in place of Articles 142 and 144 respectively of the original Act of 1908. The new Article 64 reads as under:-
_______________________________________________________________________________________________________Description of suit Period of Time from whichLimitation period begins to run_______________________________________________________________________________________________________64. For Dissuasion of immovable Twelve years The date of disable properly based possession.previous possession and not ontitle, when the plaintiffwhile in possession of theproperty has been dispossessed. _______________________________________________________________________________________________________
The new Article cores the suit for possession of immovable property which is based on previous possession only and not on title when the plaintiff while in possession of the property has been odispossessed.
18. What were the aims and objects behind the enactment of this new Article 64 has been explained in the Notes of Clauses attached to the Bill of the Act wherein it is stated as under:
'The aim behind the enactment has been thus explained. Articles 142 and 144 of the Existing Act have given rise to a good deal of confusion with respect to the suits for possession by owners of the property. Article 64 as proposed replaces Article 142, but it restricted to the suit based on possessor title so that an owner of the property does not lose unless the defendant in possession is able to prove adverse possession'.
in my opinion, therefore, Article 64 of the Limitation Act, 1963 throws considerable light upon the meaning and the expression used in Article 142 of the Limitation Act, 1908 and a suit based on title will not be covered by the said based on title will not be covered by the said Article. Even otherwise the term 'discontinuance' used in the said Article will imply a voluntary act and abandonment of possession followed by the actual possession of another. It necessarily implies that a person who has discontinued the possession has given up the property and has left it to be possessed by anyone who chooses to come in. For this there must be an intention to abandon title before there can be said to be discontinuance in possession. Such a discontinuance cannot be assumed, but it must either be admitted or proved. In this particular case it is neither admitted nor it is proved. But the argument of Shri chendke is that it should be assumed from the fact that the plaintiffs have failed to prove the allegations of tenancy. in my opinion, from the mere fact of failure of the plaintiff to prove the allegation of tenancy it cannot be assumed that there was discontinuance of possession in a sense their the plaintiff had intention to abandon their title and had given up the house property or had left it to be possessed by the defendant
19. Asan alternate argument Shri .Manohar had also relied upon Ex. 54 a declaration made by the defendant before the Municipal Corporation authority to the effect that he is living in the said houses as a tenant on rent at Rs. 5/- per month. The date of this declaration is 26-4-152.. Ex. 54 is the certified copy of the declaration given by the defendant to the Nagpur Municipal Corporation. As observation by the trial Court in para 13 of its judgment it has been duly proved by the Assessment inspector Madhukak (P.W..4). The contents of this declaration are admissible in evidence though its originals not brought because the original is reported to be lost. Shir Manohar was relying upon this declaration not for the purpose of establishing the relationship of landlord and tenant between the plaintiffs and the defendant, but as an admission of the defendant to prove that the defendant was in permissive possession of the house property. It was further contended by Shri Manohar that even if it is held that Art. 142 of the Limitation Act applies to the present case this declaration clearly establishes the fact that till 1952 the defendant was admitting that he was in the permissive possession of the property, and therefore, a question of discontinuance of possession will not arise till that date. It the date of the declaration is taken to be the starting point of limitation is taken to be the starting point of limitation is taken to be the starting point of limitation, then according to Shri. Manohar, the suit filed by the plaintiffs was within limitation.
20. In my opinion, there is considerable force in this contention of Shri . Manohar. Shri Chendke has objected to the admissibility of Ex. 54 other declaration on the admissibility of Ex. 54 the declaration on the ground that it is a piece of evidence which will contradict the findings given in the previous suit where in it was held that the plaintiffs have failed to prove that the defendant was their tenant. It is further submitted by Shri Chendke that no evidence to contradict that finding can be tendered even for a collateral purpose.
21. In my opinion it is not correct to any that Ex. 54 the declaration given by the defendant cannot be used for any purpose/ The plaintiffs in this suit are not claiming any finding in this behalf. This admission incorporated in Ex. 54 the declaration given by the defendants being relied upon by the Plaintiff is to show that the defendant was to permissive possession of the porporty. As held by the Supreme Court in bharat Singh s. Mst . Bhagiriathi : 1SCR606 the admissions duly proved are admissible in evidence. In the present case the said admission has been duly proved and he evidence in this behalf adduced by the plaintiffs has been rightly accepted by the trial Court. This being the position, in my opinion, it will have to be held that till the date of this declaration in the year 1952, the defendant himself had admitted that he was in the permissive possession of the suit house. Therefore , even if discontinuance of possession is assumed, it will be after that date only and on this count also suit will be within limitation even under Article 2142 of the Limitation Act, 1908.
22. In the view which I have taken it is quite clear that it is the Article 144 of the Limitation Act, 1908 which will apply to the present case. In para 15 of the written statement the defendant had alleged that he is in possession of the suit house in his won right as an owner thereof exclusively without interruption by Gaurabai and Maina, peacefully and adversely to them all. However, it was contended by Shri Chendke that the defendant should be given a fresh opportunity to provoe his case of adverse possession and for this purpose the suit should be remanded back to the trial Court for a fresh trial.
23. In my opinion it will not be in the interest of justice to allow the defendant a fresh opportunity in this behalf. The defendant had an ample opportunity to prove his case. As mentioned in para 9 of the appellate judgment it was conceded before the learned Judge that if Article 144 were to apply to this suit, than the defendant has no case. It is further clear from Ex.54 the declaration given by the defendant, before the Municipal Corporation, that he was in permissive possession of the house til hen and therefore no useful purpose will be served by remanding the case. Having regard to the facts and circumstances of the case and for the reasons stated hereinbefore it is not possible former to accept the request make by Shri Chendke in this behalf.
24. In the view which I have taken therefore, the appeal filed by the plaintiff in is allowed. The judgment and decree passed by the Second Extra Assistant Judge in Civil Appeal No. 55 of 1963 decided on 19-2-1964 is set asi de and the judgment and decree passed by the Sixth Joint Civil Judge, Junior Division Nagpur dt. 11-1-1963 in Regular Civil Suit No.838 of 1961 is restored. In view of this the cross-objection is diismissed. However, in the circumstances of the case there will be no order as to costs. Leave to file LPA orally prayed for refused.
25. Order accordingly.