K.L. Pandey, J.
1. The plaintiff Mst. Gitabai filed this appeal against the reversing decree of the lower appeal Court by which her suit under Order 21, Rule 103, C. P. C.. for declaration of her title to occupancy plot khasra No. 73, area 5-13 acres, of village Ner in Burhanpur tahsil was dismissed. Mst. Gitabai died during the pendency of this appeal and her legal representatives were, therefore, brought on record.
2. Dhirajlal, a Gujrati Bania, held the disputed plot as an occupancy tenant. One Mst. Bhimabai claimed to be his widow, although the lower Courts have found that she was only his concubine. Dhirajlal had leased out the disputed plot to Chindhu (defendant 4) for 4 years, from 1948-49 to 1951-52. Dhirajlal died on 4th October, 1948 leaving behind him surviving Mst. Bhimabai a sister Mst. Gitabai, (plaintiff), a predeceased sister's son Kishandas (defendant 2) and his son Nalinikant (defendant 1). On 3rd March 1952, Mst. Gitabai leased out the disputed plot to Daulat (defendant 3) for one year. Thereafter, on 9th July 1952, Mst. Bhimabai executed a gift deed in respect of that plot in favour of Kishandas.
3. Mst. Gitabai filed Civil Suit No. 73-A of 1954 for arrears of sub-rent and possession against Daulat on the averment that he was allowed to continue the lease for 1953-54. Chindhu was also impleaded as a defendant in that suit, which ended in a compromise decree for possession in favour of Mst. Gitabai. Subsequently, Mst. Gitabai filed an application under Order 21, Rule 97, C. P. (X alleging that Nalinikant had obstructed delivery of possession. That application was dismissed on the ground that Nalinikant was bona fide in possession on his own behalf. Thereupon Mst. Gitabai launched the suit out of which this appeal arises.
4. Mst. Gitabai claimed to be entitled to the disputed plot as the sole surviving sister and heir of Dhirajlal. Only Nalinikant and Kishandas resisted the claim. According to them, Mst. Bhimabai, being the widow of Dhirajlal, was rightfully entitled to the plot. She made a gift of the plot to Kishandas and thereby conveyed to him a valid title. In any event, Mst. Bhimabai and Kishandas were in adverse possession of the plot for more than 3 years next before the suit and had thereby perfected their title to it. Finally, in the circumstances of the case, a suit for mere declaration of title purporting to be one under Order 21, Rule 103, C. P. C., is incompetent.
5. Both the Courts below concurrently found in favour of the plaintiff with one exception. While the Court of first instance held that the claim was not barred by time, the lower appeal Court took the view that Mst. Bhimabai had, to the knowledge of Mst. Gitabai, intercepted the rent due from Chindhu right from 1948-49 and had thereby not only extinguished the title of Mst. Gitabai but had also herself become a full-fledged tenant or the disputed plot even before she gifted it to Kishandas on 9th July, 1952.
6. The main question for consideration is whether the lower Court's view on the question of limitation is correct. The claim to the disputed occupancy plot is evidently governed by Article 1 of the Second Schedule to the Central Provinces Tenancy Act, 1920. Under that provision a tenant who has been dispossessed or excluded from possession has to bring his suit for possession within 3 years. In the lower appeal Court, as in this Court, the learned counsel for the respondents 1 and 2 strongly relied upon Kalimaddin Mea v. Eakutennesa Bibi, AIR 1940 Gal 347, for the view that, when land is in possession of tenants, the plaintiff must show, in order to establish adverse possession, that he intercepted rents payable by the tenants for the requisite period. In that case, the principle was accepted, without any discussion as good law and it was held that it was not attracted by the facts of the case. In other words, the decision does not rest on that principle which did not apply to the facts found in that case. In Murlidhar v. Hazarilal, ILR (1942) Nag 703: (AIR 1942 Nag 108), a Division Bench of this Court observed;
'In our opinion Article 1 to the second Schedule corresponds in principle to Article 142 of the Indian Limitation Act, and it is well settled there that there can be no adverse possession against a person not entitled to immediate possession until his right to possession accrues.' (p. 709 (of ILR Nag): (at p. 110 of AIR)).
It was pointed out in that case that the principle was also recognised by the Privy Council in relation to landlords against trespassers who oust the tenant: Katyayani Debi v. Udoy Kumar Das, ILR 52 Cal 417: (AIR 1925 PC 97). In keeping with this view are the following observations of K. J. Rustomji in his Law of Limitation and Adverse Possession:
'If, when the lease determines by effluxion of time, a trespasser is in possession of the demised premises, time runs against the lessor from expiration of the lease. If during the currency of a lease a trespasser acquires a title under the statute against the lessee, the lessor's right to recover possession from the trespasser accrues only on determination of the lease. As long as the lease continues, the lessor has no immediate right of possession. The fact that a stranger dispossesses the lessee during the pendency of the lease does not accelerate the lessor's right to possession; in other words, the stranger's possession may be adverse to the lessee without being adverse to the lessor, the rule being that a tenant cannot bind the reversion either by his positive act or by neglect.' (Sixth Edn., p. 763).
It has accordingly been held consistently that mere non-payment of rent, or discontinuance of payment of rent, does not by itself create adverse possession.
7. It is, however, urged that Chindhu disavowed the title of the plaintiff and attorned and paid rent to Mst. Bhimabai. Even these acts on the part of the tenant are not enough. Only when the landlord is also apprised of those acts and acquiesces, the possession becomes adverse and the statute rung against the landlord. The lower appeal Court has presumed, without any evidence, that Mst. Gitabai, a lady residing in Bombay city far away from the place where the disputed plot is stituate, knew that the tenant Chindhu had attorned and paid rent to Mst. Bhimabai.
Indeed, Chindhu 4 D. W. 1 not only did not say one word in support of it but also clearly stated that, during the term of the lease, he did not know or see Mst. Gitabai. That being so, the lower appeal Court's finding relating to the knowledge of Mst. Gitabai about attornment and payment of rent to Mst. Bhimabai cannot be accepted. It is plain that a tenant cannot affect the title of his landlord merely by paying, without the knowledge of the landlord, rents to a third person.
There is in such a case no ouster of the landlord and limitation does not run against him. Applying these principles to the facts of the present case, Mst. Gitabai must be deemed to be in possession through the tenant Chindhu up to the date when the lease expired by efflux of time, namely 30th June 1952. She filed the present suit on 18th April 1955 within 3 years of that date. That being so, it must be regarded as well within time.
8. The learned counsel for the defendants 1 and 2 endeavoured to support the decree of the lower appeal Court on two other grounds which were decided against them. One of these is that the lower appeal Court failed to give effect to the rule of evidence that continuous co-habitation for a number of years raises the presumption of marriage. It is well settled that it is a rebuttable presumption and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them: Gokal Chand v. Parvin Kumari, AIR 1952 SC 231.
In the instant case, Dhirajlal was a Gujrati Bania and Mst. Bhimabai is a Kunbi woman. Lakhmidas 1 D. W. 4 stated that, according to the custom of his caste, there could be no remarriage between the two. Even apart from the caste custom, the evidence of repute about the status of Mst. Bhimabai is conflicting. The evidence led by the defendants 1 and 2 shows that Dhirajlal and Mst. Bhimabai lived together and co-habited from 1941 to 1948. This was not a sufficiently long period to support the presumption.
It is also not without significance that, although it was suggested that there was an actual ceremony of remarriage (Pat), no evidence was led on the point and even Mst. Bhimabai, who was at one stage present in Court, was not examined. The inference must be that had she been examined, she could not have supported the plea of marriage between her and Dhirajlal. Finally, it would appear from Ex. 1-D-2 that, in 1941, Mst. Bhimabai was already a married woman and her husband was alive, though it was said that she had secured a release from her husband. No evidence was led to show that she was validly divorced and she could therefore remarry Dhirajlal. In the circumstances, the presumption, if available, must be regarded as effectively rebutted.
9. The argument that Mst. Gitabai knowingly obtained in Civil Suit No. 73-A of 1954 a paper decree against Daulat and Chindhu and her present suit could not be regarded as one under Order 21, Rule 103, C. P. C., does not bear examination. Admittedly, she had sublet the disputed plot to Daulat and properly laid her suit against him. Also, Chindu 4 D. W. 1 admitted that, in 1952-53 and 1953-54, he performed agricultural operations on the plot. That being so, he was correctly impleaded as a defendant in that suit. Chindhu 4 D. W. 1 now claims that in those years he worked on the plot on behalf of Kishandas.
This is clearly an improvement, for his simple defence in the suit was that he was never in possession of the suit field' (Ex. 1-D-3). It would have been another matter if he had disclosed that Kishandas was in possession of the field and Kishandas was not even then impleaded as a defendant. It would thus appear that Daulat and Chindhu are colluding with Kishandas and trying to put forward a new case. In view of the facts and circumstances above set out, I am in agreement with the Court below that Nalinikant obstructed delivery of possession and that the provisions of Order 21. Rule 103, C. P. C., were properly availed of for filing this suit.
10. The result is that the appeal succeeds and is allowed. The decree of the lower appeal Court is set aside and that of the first Court is restored. The defendants shall bear their own costs and pay all costs of the plaintiff and her legal representatives throughout. Counsel's fee here according to schedule.