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Ramanand and anr. Vs. Smt. Premvati and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 4139 of 1964
Judge
Reported inAIR1973All105
ActsLimitation Act, 1908 - Schedule - Articles 136 and 144; Uttar Pradesh Panchayat Raj Act, 1947 - Sections 64 and 66
AppellantRamanand and anr.
RespondentSmt. Premvati and anr.
Appellant AdvocateK.C. Saxena, Adv.
Respondent AdvocatePrami Chaturvedi, Adv.
DispositionAppeal dismissed
Excerpt:
.....became entitled to possession for the first time on same date within 12 years of the institution of the..........topossession.'in the present case the plaintiff's vendors admittedly were not in possession on the date of sale viz. 25-8-1958, and the suit had been filed by the plaintiffs as purchasers. article 136 provides for suit for possession of immovable property purchased from a person who is not in possession on the date of sale. the present suit will thus squarely be covered by article 136 of the limitation act, 1908. article 144 of the limitation act itself says that it would apply only to a suit for possession of immovable property not otherwise specifically provided for in any other article of the limitation act. at the suit of the present nature is provided for by article 136, article 144 of the limitation act will not apply. the ruling cited by the learned counsel for the appellants.....
Judgment:

Hari Swarup, J.

1. This is plaintiff's appeal arising out of a suit for recovery of possession over a house and for arrears of rent and mesne profits. The trial Court decreed the suit, but on appeal the decree was set aside and the suit was dismissed. It was dismissed as barred by limitation.

2. The facts of the case are, that the house originally belonged to Chunni and Naubat, they sold it on 23-8-1927 to Prem Raj and subsequently his sons Piarey Lal and Sri Rama sold it to the plaintiff on 25-8-1958. The present suit was filed in 1958. The case of the plaintiffs was that Chunni and Naubat after the sale had continued to occupy the house as tenants of the vendee Prem Raj and in 1943 Naubat had executed a rent note in respect of the house and subsequently the claim for rent was also decreed by Nyaya Panchayat on the basis of a compromise. The defence on the other hand was that the relationship of landlord and tenant had never existed, the alleged rent note of 1943 was a forged document and the decree of the Nyaya Panchayat was a nullity as the Nyaya Panchayat had no jurisdiction in the matter and the compromise was never entered into by the defendant. The suit was also said to be barred by limitation. The trial Court believed the plaintiff's case and decreed the suit. The lower appellate Court after a reconsideration of the evidence on record held that the relationship of landlord and tenant between the parties never came into existence and that the rent note of 5-6-1943 was a forged document and had not been executed by Naubat About the Nyaya Panchayat's decree, it held that the compromise had not been signed by the defendant and that the Nyaya Panchayat had no jurisdiction to pass the decree for rent in respect of the house. It also did not accept the plaintiff's case that the defendant never remained in possession of the property as tenant of the plaintiffs or their vendors. On these findings, the court below held that the suit was barred by limitation under Article 136 of the Indian Limitation Act, 1908.

3. Learned counsel for the appellants contended that the Article of the Limitation Act, 1908 applicable to the facts of the case was Article 144 and not Article 136. The contention is that as the plaintiffs had treated the defendant as a tenant and had filed a suit after terminating the tenancy, no Article other than Article 144 of the Limitation Act was applicable. This contention is based on a misconstruction of the plaintiffs' pleadings. The suit was filed not on the basis of the contract of tenancy but on the basis of title. The plaintiffs had come to Court on the allegation that the defendant having denied his title and having no right to continue in possession was liable to ejectment. The suit was thus a simple suit for possession based on title, against a person holding the house without title, and not a suit by a landlord for the ejectment of a tenant whose tenancy had been terminated by a notice to quit. Further, on the finding of the Court below about the non-existence of the relationship of landlord and tenant between the plaintiffs or his vendors and the defendant, the suit of the plaintiffs would be maintainable only as a suit by a person alleging himself to be the owner of the property against a trespasser having no legal right to hold the same.

4. Learned counsel for the appellants also made a faint attempt to argue that the finding of the Court below that the decree of the Nyaya Panchayat was of no effect, was erroneous in law, but was unable to show how the Nyaya Panchayat was entitled to pass such a decree. Besides the decree being passed on a compromise which has been proved to have not been entered into by the party concerned, the Nyaya Panchayat had no jurisdiction to pass the decree by reason of Section 66 read with Section 64 of the U. P. Panchayat Raj Act. Section 64 (1) (a) permits the taking cognizance of any civil case of the following description only:

'a civil case for money due on contract other than a contract in respect of immovable property.'

Any money due as rent of immovable property would be money due on a contract of lease and accordingly on a contract in respect of immovable property, and the suit for the recovery of the same could not He in the Nyaya Panchayat. The view of the lower appellate Court that the decree of the Nyaya Panchayat in the circumstances aforesaid, was of no consequence for proving the relationship of landlord and tenant between the parties cannot be said to suffer from any error of law.

5. The finding of the first appellate Court that neither the defendant nor her predecessors-in-interest ever occupied the house as tenants of the plaintiffs or their vendors and the finding that Chunni and Naubat and their successors-in-interest vacated the house or gave possession to Prem Raj or to his successors-in-interest, are findings of fact based on appreciation of evidence and have not been shown to be vitiated by any error of law.

6. Coming to the question regarding the bar of limitation, Article 136 of the Limitation Act reads as under:--

'By apurchaser in a private sale for possession of Immoveable property sold whenthe vendor waa out of possession at the date of the sale.

Twelveyears

When the vendor is firs entitled topossession.'

In the present case the plaintiff's vendors admittedly were not in possession on the date of sale viz. 25-8-1958, and the suit had been filed by the plaintiffs as purchasers. Article 136 provides for suit for possession of immovable property purchased from a person who is not in possession on the date of sale. The present suit will thus squarely be covered by Article 136 of the Limitation Act, 1908. Article 144 of the Limitation Act itself says that it would apply only to a suit for possession of immovable property not otherwise specifically provided for in any other Article of the Limitation Act. At the suit of the present nature is provided for by Article 136, Article 144 of the Limitation Act will not apply. The ruling cited by the learned counsel for the appellants reported in Qadir Bux v. Ram Chand : AIR1970All289 has thus no applicability. That case dealt with a competition between Articles 142 and 144 and not between Articles 136 and 144. The contention of the learned counsel for the appellants is that Article 136 provides only for such cases in which the plaintiff's vendor gets entitled to possession after the date of sale and not when he was already entitled to possession prior to the sale. In the latter circumstances, according to the counsel, Article 144 and not 136 will apply. The contention it not sound. The words of Article 136 apparently contemplate no such distinction. The use of the word 'is' in the third column of Article 136 does not necessarily refer to a future event, it should also mean 'was' if the event had occurred prior to the date of sale. For instance, if the vendor had become entitled to possession a year before the sale, the period of limitation will be twelve years from the date when the vendor had become entitled to possession. A similar matter came up for consideration before a Bench of this Court in the case of Pratap Chand v. Saiyida Bibi, ILR (1901) 23 All 442. In that case the vendor was in possession till 1885, the sale was executed in 1895 and the suit was filed in 1896. The Court applied Article 136 of the Limitation Act and held that the date of commencement of limitation would be the date in 1885 when the defendant lost possession, as that was the date when the vendor was first entitled to recover possession. The Court observed:

'We hold that the words in the third column relate to the beginning of the dispossession referred to in the first column of the Article and that the meaning of the article is that if supposing no sale had taken place, the vendor's title would have been alive at the time, the vendee's suit is brought. Such suit is not barred: but that on the other hand, when the vendor has been for twelve years out of possession at the date of the vendee's suit, such a suit would be too late.'

7. The next contention is that the period of twelve years should be so counted that the vendee should be given the same period of limitation which the vendor would have had if Article 144 had been applicable. Article 136 is not capable of any such interpretation. It provides for the commencement of limitation from the date when the vendor was first entitled to possession and has in it no element of the concept of defendant's adverse possession. The reference is to the date since when the vendor is out of possession, either by not initially getting possession or by being dispossessed. In either case a person out of possession becomes entitled to possession from the inception of the event. In the present case, the date of sale in favour of the predecessors-in-interest of the plaintiffs' vendors was the date when the vendor was first entitled to get possession.

8. After the plaintiffs' case of lease was negatived, their vendors must be held to be entitled to possession from the date on which Piarey Lal had purchased the property from Chunni and Naubat viz. 23-8-1967. It was this date which would be the date for the commencement of the period of 12 years under Article 136 of the Limitation Act. The plaintiffs have thus failed to show that their vendors became entitled to possession for the first time on same date within 12 years of the institution of the suit. The suit was thus rightly dismissed as barred by time.

9. In the result, the appeal fails and is dismissed with costs.


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