S.D. Agarwala, J.
1. This is a defendant's second appeal arising out of a suit filed by the plaintiffs respondents for a declaration, recovery of possession in respect of the disputed house along with site and for recovery of Rs. 120/- as damages. The suit was decreed by the trial court on 7-11-1958. Against the said judgment an appeal was filed which was dismissed by the lower appellate court on 8th October, 1960. Against the said judgment the present appeal has been filed in this court.
2. Learned counsel for the appellants has raised only one contention before me that the suit is barred by limitation. In support of his submission he has relied upon Articles 139, 142 and 144 of the old Limitation Act of 1908 as the suit had been filed on 7th August, 1950.
3. The facts relevant for deciding the present appeal are as follows: Amba Prasad Gupta, respondent No. 8 (who is now dead and his heirs have been brought on record) was permitted to prosecute the suit as sole plaintiff under Order 22, Rule 10, C. P. C. The predecessor in title of Amba Prasad Gupta was one Fakir Chand. The suit is in respect of a house. The defendants appellants claimed their rights through Bhagwan Din, who was the tenant of Fakir Chand.
4. Fakir Chand filed suit No. 264 of 1941 against Bhagwan Din for ejectment from the house. This suit was decreed by the trial court only for arrears of rent. Civil Appeal No. 75 of 1943 was filed by Fakir Chand which was allowed and the suit for ejectment against Bhagwan Din was also decreed. In execution of this decree vide execution case No, 165 of 1949 the defendants appellants put obstruction and resistance to the delivery of possession. In the said execution the executing court held that the defendants appellants were not liable to be ejected. In view of the order of the executing court the present suit was filed by the plaintiffs respondents for a declaration and recovery of possession of the house along with the site in suit.
5. During the pendency of suit No. 264 of 1941 against Bhagwan Din, Sheo Balak the defendant appellant filed suit No. 140 of 1943 against Ram Dei, widow of Bhagwan Din for ejectment. At that time suit No. 264 of 1941 was al-ready pending. In pursuance of the decree which was collusively obtained by the defendants appellants against Ram Dei the defendants appellants entered into possession of the house. Since the decree in suit No. 140 of 1943 was passed on 14th December, 1943 it is clear that the defendants appellants came in possession of the property only after 14th December, 1943. The instant suit was filed by the plaintiff respondent on 7th August, 1950.
6. From the facts as found by both the courts below it is clear that the defendants appellants are claiming through Bhagwan Din, who was the tenant of Fakir Chand, the predecessor-in-interest of the plaintiff respondent. They have failed to establish any independent right in the property in dispute. The question of limitation has, therefore, to be examined in the light of these facts.
7. In the trial court issue No. 8 was framed in regard to limitation which was to the following effect.
'Whether the suit is barred by time under Article 142 of the Limitation Act?'
8. The trial court decided this issue in favour of the plaintiffs respondents, In appeal before the lower appellate court the appellants raised the question of limitation only on the basis of Article 142 of the Limitation Act. No plea was raised in regard to Article 139 or Article 144 of the Limitation Act. So far as Article 144 of the Limitation Act is concerned the plea is that the defendants appellants had perfected their right by adverse possession. This plea is essentially based on fact and as such cannot be permitted to be raised for the first time at the second appellate stage. So far as Article 139 is concerned I am permitting the appellant to raise the same as the appellants have confined their arguments only on the basis of the facts already on record.
9. Article 139 of the old Limitation Act is quoted below:--
'By alandlord to recover possession froma tenant.Twelveyears.When thetenancy is determined '
10. Learned counsel for the appellants has urged that in the instant case the tenancy was determined by virtue of Section 111, Sub-clause (g) of the T. P. Act, when Mst. Maharajia executed a gift deed on 27th February, 1931, registered on 2nd March, 1931. Mst. Maharajia was a tenant of the property in dispute before Bhagwan Din, Section 111,Sub-clause (g) of the T. P. Act provides that a lease of immoveable property determines by forfeiture in case the lessee renounces his character as such by setting up title in a third person or by claiming title in himself. Learned counsel has in this connection relied on Section 116 of the Evidence Act and urged that since the tenant Mst Maharajia had denied the title of the landlord her possession became adverse to Fakir Chand, the owner, the predecessor-in-interest of the plaintiff respondent.
11. The effect of Section 116 of theEvidence Act was considered by the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96 it was held by the Privy Council as follows :-
'Section 116 of the Indian Evidence Act is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, howsoever defective it may be, so long as he has not openly restored possession by surrender to his landlord.'
12. From the above dictum of the Privy Council it is, therefore, clear that the denial of title by Mst Maharajia could only have taken place when she had openly restored possession by surrender to Fakir Chand. In the absence of surrender of possession it could not be taken that she had denied the title and accordingly there was forfeiture of tenancy as provided by Section 111, Sub-clause (g) of the T. P. Act. If the contention of the learned counsel for the appellants is accepted then serious consequences are likely to occur. A tenant in possession of the property can unilaterally transfer rights in the property to third parties and then start asserting hostile title to the owner. This could not possibly be the intention of law. In the circumstances I am clearly of the opinion that unless the appellants had established as a fact that their predecessors-in-interest, who were merely tenants, had surrendered possession to the landlord no question of determination of the tenancy by forfeiture arose. In this view of the matter since the tenancy was not determined the period of limitation did not commence as provided by Article 139 of the Limitation Act and as such the suit is clearly not barred under Article 139 of the old Limitation Act.
13. So far as Article 142 of the Limitation Act is concerned the period oflimitation prescribed for filing a suit for possession is 12 years from the date of dispossession or discontinuance. In the present case from the facts it is clear that the appellants could only have come into possession after 14th December, 1943 when the suit was decreed against the widow of Bhagwan Din and they took possession. The suit filed on 7th August, 1950 was clearly within 12 years and as such the suit was not barred by time by virtue of Article 142 of the Limitation Act.
14. In the result I do not find any force in the arguments of the landlord --counsel for the appellants. There is, therefore, no merit in the appeal.
15. The appeal is accordingly dismissed but in the circumstances of the case I direct the parties to bear their own costs.