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ichalal Jagmohandas Vs. Nago Sina Patim - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 369 of 1919
Judge
Reported inAIR1921Bom462; (1921)23BOMLR60; 60Ind.Cas.589
Appellantichalal Jagmohandas
RespondentNago Sina Patim
DispositionAppeal allowed
Excerpt:
indian limitation act (ix of 1908), articles 139, 144 - landlord and tenant-suit by landlord to recover possession of property from the co owner of the property.;on the 22nd august, 1903, the plaintiff purchased half of a field; but the vendor remained in possession under a rent-note for one year, executed on the same day the vendor held over; and in 1913 sold the entire field to defendant and gave up possession to him. the plaintiff having sued in 1917 to obtain joint possession of the moiety sold to him :-;that the suit was within time, since it was governed by article 144, and not by article 139, of the indian limitation act 1908.;chandri v. daji bhan (1899) i.l.r. bom. 504. - - we think the case clearly comes under article 144 and not under article 139. 3. the appeal must be allowed..........held to fall under article 139; and there being no other article applicable, it falls under the general article 144. that being so, the grounds on which the lower courts have held the suit time-barred are, in my opinion, wrong.
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover joint possession of the plaint land. Plaintiff's father purchased a joint half share in Survey No. 165, Pot No. 1, with other property from Bhiku Dharma and Anu Bhiku on the 22nd of August 1903. On the same day Bhiku and Anu passed a lease in favour of Jagmohandas in respect of the property mentioned in Exhibit 19 for a term of one year and agreed to pay the rent of Rs. 42. The term of the rent-note expired on the 22nd of August 1904. On the 5th of March 1913, Bhiku Dharma, Hari Dharma, Anu Bhiku and Sakharam Hari, sold the entire land, Survey No. 165, Pot No. 1, to the defendant. This suit was filed on the 28th of August 1917. It has been dismissed in both Courts on the ground that Article 139 of the Indian Limitation Act applies and that when the term of the rent-note expired on the 22nd of August 1904, Bhiku and Anu held adversely to the landlord, and there was no evidence in the case from which a fresh tenancy could be inferred.

2. The facts of this case are entirely different from the facts in Chandri v. Daji Bhau I.L.R. (1900) Bom. 504 2 Bom. L.R. 491. It must be remembered that in this case the tenants were the vendors who were tenants-in-common with two other persons of the plaint land and the fact that they held over would not in any way affect the plaintiff's right as purchaser under the sale-deed to sue for partition against his co-tenants-in-common. What might have happened if he had let a portion of the land which belonged to the tenancy-in-common To an outsider who held over is a question which does not arise. In this case the plaintiff stood in the shoes of Bhiku and Anu who had a right of partition against the other members Hari and Sakharam, and it would depend upon the terms of the partition what portion of the tenancy-in-common would go Jo him on division. We think the case clearly comes under Article 144 and not under Article 139.

3. The appeal must be allowed and the plaintiff's suit decreed with costs.

Fawcett, J.

4. I agree. In this suit the plaintiff stated his claim to recover joint possession of the plaint property not as a landlord, but as an owner, and although he does mention that the land was leased to the defendant's predecessor-in-title, yet his claim was clearly brought on the basis of his title as owner. Accordingly, although the tenancy may have determined, I do not think that the case can properly be held to fall under Article 139; and there being no other Article applicable, it falls under the general Article 144. That being so, the grounds on which the lower Courts have held the suit time-barred are, in my opinion, wrong.


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