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Shri Mahadeoji Idol at Bandhaiyapura and anr. Vs. Dasai S/O MatadIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 17 of 1962
Judge
Reported inAIR1964MP207
ActsLimitation Act, 1908 -Schedule - Articles 139 and 144; Central Provinces Tenancy Act, 1920 - Schedule - Article 1
AppellantShri Mahadeoji Idol at Bandhaiyapura and anr.
RespondentDasai S/O MatadIn and ors.
Appellant AdvocateA.P. Sen, ;V.S. Pandit, ;N.L. Mukerji and ;A.H. Saifi, Advs.
Respondent AdvocateJ.V. Jakatdar and ;D.P. Verma, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredMadan Mohan Gossain v. Kumar Rameshwar Malia
Excerpt:
.....from whom a sub-tenant holds land is a landlord. when, therefore, after the determination of the tenancy dasai continued in possession of the fields against the plaintiffs' consent, he clearly became a trespasser. this follows fromthe well-settled principle that when tenancy is determined and nothing further occurs after the determination of the tenancy, the holding over by the tenant, though by english law styled a tenancy at sufferance, is wrongful unless the landlord assents to the continuance of the tenant's possession. here, the tenancy was terminated at the end of the agricultural year 1945-46 and the plaintiffs' suit filed on 18th march 1959 was thus more than twelve years after the date of the determination of the tenancy and was clearly barred by time. the tenant vis-a-vis a..........was barred by limitation under the aforesaid provision were inconsistent. according to him, as dasai's possession was not adverse till 10th september 1958, the plaintiffs could not be said to have been excluded from possession of the fields till that date and, therefore, the suit filed by the plaintiffs on 18th march 1959 was within the three years' limitation prescribed by article 1 of the second schedule to the tenancy act. he, therefore, decreed the plaintiffs' claim for possession and mesne profits in respect of khasra nos. 254 and 265. 6. the learned single judge dismissed the plaintiff-appellants' claim on the reasoning that on the plaintiffs' own showing matadin's subtenancy was terminated by a notice ending with the agricultural year 1946-47, that is, 1st june 1946 to 31st.....
Judgment:

Dixit, C.J.

1. This Letters Patent appeal from a decision of Golvalker, J. arises out of a suit filed by the appellants for the recovery of possession of three fields from the respondent No. 1 Dasai and for mesne profits thereof for the years 1955 to 1958. The suit was dismissed by the Civil Judge, Class II, Jabalpur, who tried it. On the said plaintiffs' appealing, the learned Additional District Judge, Jabalpur, gave to them a decree for possession of two fields, namely, khasra Nos. 254 and 265 situated in Jabalpur tashil and for mesne profits amounting to Rs. 750/-. The plaintiffs' claim with regard to the third field, namely, khasra No. 263, which the defendant Dasai said was not in his possession, was dismissed by the learned Additional District Judge, Jabalpur. In the second appeal preferred by the respondent Dasai in this Court, the learned Single Judge dismissed the plaintiffs' claim in toto.

2. The plaintiffs' case was that Shri Mahadeoji idol of Bandhaiyapura, Gohalpur, was the bhumidhari tenant of the fields in suit; that the fields had been sub-let to Matadin, the father of the respondent Dasai; that Matadin, who was thus the sub-tenant of the fields in the year 1946-47, was served with a notice terminating the tenancy at the end of the agricultural year 1946-47; and that Matadin died some time before May 1947 and thereafter his son Dasai was in occupation of the fields as a trespasser. The plaintiffs proceeded to aver that in 1949 Dasai made an application under Section 40 of the Central Provinces Tenancy Act, 1920, for conferral of occupancy tenancy rights stating that he was a sub-tenant of the fields and after the death of Matadin had been paying rent to the plaintiffs; that this application was dismissed by the Sub-Divisional Officer on 10th September 1958; and that in those proceedings Dasai never asserted any adverse title against them. When the respondent Dasai refused to deliver possession, the plaintiffs filed thesuit leading to this appeal alleging that the causeof action for the suit arose on 10th September 1958, the date on which the Sub-Divisional Officer rejected Dasai's claim under Section 40 of the Tenancy Act.

3. The defendant-respondent Dasai admitted that Matadin was a sub-tenant, but he pleaded that he was a sub-tenant in the year 1945-46 anddied before May 1946 and that after his father's death he was in possession of the fields bearing khasra Nos. 254 and 265. He also admitted that he had filed an application under Section 40 of the Tenancy Act which was dismissed by the Sub-Divisional Officer on 10th September 1958; but he denied that in those proceedings he ever stated that he was a sub-tenant or paid rent to the plaintiffs. He further pleaded that the applicationwhich he made under Section 40 did not preclude him from asserting an adverse title against the plaintiffs in respect of the fields and that in fact he was in possession of the two khasra numbers openly, adversely and to the knowledge of the plaintiffs since the death of his father.

4. Both the trial Judge and the Additional District Judge found that the plaintiffs were the bhumidhari tenants of the fields in suit; that Matadin was the sub-tenant of the fields in 1945 46; that he died in that year and the tenancy was determined during his lifetime by a notice terminating the tenancy from the end of the agriculturalyear; that after Matadin's death Dasai was in possession of the fields, khasra Nos. 254 and 265; that the respondent Dasai had made an application under Section 40 of the Tenancy Act which was dismissed by the Sub-Divisional Officer on 10th September 1958; and that in those proceedings till 10th September 1958 Dasai regarded himself as a sub-tenant of those two fields.

The learned Civil Judge held that as Matadin had not surrendered possession of the two fields to the plaintiffs after the determination of the tenancy, Dasai was estopped from denying the title of the plaintiffs; that his possession of the fields after Matadin's death was unlawful but was not adverse; that till the date of the passing ofthe order by the Sub-Divisional Officer, that is, until 10th September 1958, Dasai regarded himselfas a sub-tenant and never asserted any hostile title; and that consequently it could not be held that he had acquired title to those two fields by adverse possession. He further held that under Section 104 of the Tenancy Act, read with Article 1 of the Second Schedule to it, the plaintiffs'suit was barred by time inasmuch as it had been filed more than three years after the determination of the tenancy. He also observed that the plaintiffs' suit was barred even under Article 139 of the, Limitation Act, 1908. The learned Civil Judge did not say so, but he treated the possession of the respondent Dasai after the determination of thetenancy as tantamount to 'dispossession or exclusion of the plaintiffs from the fields'. On this view, he dismissed the plaintiffs' suit.

5. In appeal, the learned Additional District Judge agreed with the view taken by the trial Judge that Dasai was estopped from challenging the title of the plaintiffs; that at least till 10thSeptember 1958 when the Sub-Divisional Officer made the order rejecting Dasai's application under Section 40 of the Tenancy Act he regarded himself as a sub-tenant, and that he had failed to prove that he had acquired any title to the fields by adverse possession. The learned Additional District Judge, however, thought that the findings of the trial Judge that the possession of Dasai was not adverse and the plaintiffs' suit was barred by limitation under the aforesaid provision were inconsistent. According to him, as Dasai's possession was not adverse till 10th September 1958, the plaintiffs could not be said to have been excluded from possession of the fields till that date and, therefore, the suit filed by the plaintiffs on 18th March 1959 was within the three years' limitation prescribed by Article 1 of the Second Schedule to the Tenancy Act. He, therefore, decreed the plaintiffs' claim for possession and mesne profits in respect of khasra Nos. 254 and 265.

6. The learned Single Judge dismissed the plaintiff-appellants' claim on the reasoning that on the plaintiffs' own showing Matadin's subtenancy was terminated by a notice ending with the agricultural year 1946-47, that is, 1st June 1946 to 31st May 1947; that Matadin died before the end of that year and after his death Dasai entered into possession of his fields; that his possession from 1st June 1947 was that of a trespasser and this necessarily meant that the plaintiffs had been excluded from the fields; and that the exclusion from 1st June 1947 till the date of the filing of the suit being for more than three years, the plaintiffs' suit was clearly barred by time under Article 1 of the Second Schedule to the Tenancy Act. The learned Single Judge further said that the plaintiff-appellants could not take advantage of the fact that the respondent Dasai in his application under Section 40 of the Tenancy Act had claimed to be their sub-tenant; that it was on the acceptance of the plaintiffs' own contention that the respondent Dasai was a trespasser that the Sub-Divisional Officer dismissed Dasai's application under Section 40; and that being so, they were now estopped from urging that Dasai's possession till 10th September 1958 was not in any way adverse to them.

7. The sole question that arises for determination in this appeal is as to whether the plaintiff-appellants' claim is barred by time. The question has to be decided on the basis of the concurrent findings of fact reached in this case by the trial Judge and the Additional District Judge, Jabalpur. These are that Matadin was a sub-tenant of the two fields in 1945-46 and that his subtenancy was terminated during his lifetime by a notice ending with the agricultural year 1945-46 and not as observed by the learned Single Judge by a notice ending with the agricultural year 1946-47; and that Matadin died in 1945-46 and after his death Dasai took possession of the fields. As will be shown presently, the further concurrent finding of these lower Courts that in proceedings under Section 40 of the Tenancy Act Dasai admitted that he was a sub-tenant of the fields and did not assert any title hostile to the plaintiffs has no bearing on the point of limitation arising in relation to the plaintiffs' suit.

Shri Sen, learned counsel appearing for the appellants, argued that on the death of Matadin the sub-tenancy right passed under Section 38-A to Dasai; that as this tenancy was terminated by a notice from the end of the relevant agricultural year, Dasai's possession of the fields thereafterwas of a tenant holding over; that consequently Dasai was estopped from asserting any title to the fields adverse to the plaintiffs; that although his possession was wrongful, it was not necessarily adverse and there was a real distinction between possession which was wrongful and which was notadverse; that the burden of proving adverse possession was on the respondent Dasai and he led no evidence whatsoever to discharge that burden; and that, on the other hand, the statements made by him in proceedings under Section 40 of the tenancy Act indicated that he never asserted any hostile title till 10th September 1958. Shri Jakatdar, learned counsel for the respondent, on the other hand, contended that on the determination of the tenancy Dasai became a trespasser and his possession became wrongful; and that, that possession was adverse against the plaintiffs and amounted to the exclusion of the plaintiffs from the fields, and, therefore, the plaintiffs' suit was barred under Article 1 of the Second Schedule to the Tenancy Act, and it was also barred under Article 139 of the Limitation Act, 1908.

8. In our opinion, it is not necessary to decide whether the possession of Dasai was adverse to the plaintiffs. The reason is that the plaintiffs' suit is governed by Article 139 of the Limitation Act; and when that article applies, then the question whether the possession is adverse or not does not arise. Article 139 prescribes twelve years' limitation for a suit by a landlord to recover possession from a tenant, and the starting point for limitation is the date when the tenancy is determined. If a suit falls under Article 139, then Article 144, which is a residuary article, is not attracted. It is a well-settled rule of construction of the Limitation Act that when there is a specific article dealing with a specific subject, then that article is applicable in preference to a general and residuary article. If, therefore, in a suit for possession it is proved that there was a relationship of landlord and tenant between the parties and that relationship came to an end, then the limitation for the suit would be regulated by Article 139 and not Article 144. Now, the plaintiffs' suit was clearly one of the type contemplated by Article 139.

As is clear from Section 38 of the Tenancy Act, the person from whom a sub-tenant holds land is a landlord. (See also Sheosahai v. Hari Shanker, 29 Nag LR 10 : (AIR 1933 Nag 76)). When therefore, the plaintiffs sub-tenanted the fields to Matadin, they became the landlords and Matadin became their tenant. The tenancy was determined by a notice given to Matadin during his lifetime and it ended from the end of the agricultural year 1945-46. Dasai, who inherited the tenancy rights after Matadin's death, was equally bound by this notice determining the tenancy. When, therefore, after the determination of the tenancy Dasai continued in possession of the fields against the plaintiffs' consent, he clearly became a trespasser. This follows fromthe well-settled principle that when tenancy is determined and nothing further occurs after the determination of the tenancy, the holding over by the tenant, though by English law styled a tenancy at sufferance, is wrongful unless the landlord assents to the continuance of the tenant's possession. A tenancy at sufferance does not create the relationship of landlord and tenant. It is common ground that after the determination of the tenancy at the end of the agricultural year 1945-46, the plaintiffs did not consent to the respondent Dasai's remaining in possession of the fields. There can, therefore, be no doubt that Dasai's possession became wrongful and he became a tresspasser after the determination of the tenancy.

This, however, does not alter the fact that on the determination of the tenancy in 1945-46, there arose in the plaintiffs the right to recover possession of the property from him and the period of limitation would be governed by Article 139 of the Limitation Act. If Article 139 applies, then, as is clear from the wording of that article, the question whether on the determination of the tenancy the possession of Dasai was or was not adverse is not at all relevant. Here, the tenancy was terminated at the end of the agricultural year 1945-46 and the plaintiffs' suit filed on 18th March 1959 was thus more than twelve years after the date of the determination of the tenancy and was clearly barred by time.

9. We are fortified in the view we have takes by a Full Bench decision of the Bombay High Court in Sidram Lachmaya v. Mallaya Lingaya, ILR (1949) Bom 135: (AIR 1949 Bom 137). The Bombay High Court has held that a suit by a landlord against his ex-tenant, based on title, to recover possession of the demised premises is governed by Article 139 and not Article 144, which is a residuary article; that the point from which limitation begins to run is the determination of the tenancy; and that once the tenancy is determined, it is immaterial and irrelevant to consider what is the character in which the ex-tenant continues to remain in possession and in such a case the question whether the possession of the tenant was adverse or not does not arise. The Full Bench of the Bombay High Court followed the earlier decision of the Bombay High Court reported in Kantheppa Reddi v. Sheshappa, ILR 22 Bom 893 and Chandri v. Daji Bhau, ILR 24 Bom 504 and the Privy Council decision in Ramanuj v. Ramakrishna, AIR 1922 PC 184.

In Ramanuj's Case, AIR 1922 PC 184 (supra) the Privy Council affirmed the decision of the Calcutta High Court holding that in cases of tenancy by sufferance by a tenant holding over, whose lease has expired, Article 139 applied. In coming to this conclusion the Calcutta High Court had relied on the cases reported in Madan Mohan Gossain v. Kumar Rameshwar Malia, 7 Cal LJ 615 and ILR 24 Bom 504 (supra). Their Lordships of the Privy Council said that they saw no reason to disturb the judgment of the Calcutta High Court. Thus they approved of the judgment of the Calcutta High Court and the reasoning of it as also the statement of law laid down in ILR 24 Bom 504 (supra). A reference may also be made to the decision of this Court in Mitharamv. Deochand, Second Appeal No. 129 of 1958, D/-14-4-1960: 1960 MPLJ (Notes) 123 where Article 139 was applied to a suit by a landlord for recovery of possession of property from a tenant who remained in possession after the expiry of the lease period. It was observed in that case that for the application of Article 139, it was not necessary that the tenant should claim adverse title to the landlord.

10. The trial Judge and the Additional District Judge, and the learned Single Judge also, dealt the matter from the standpoint whether the plaintiffs' suit was within time or barred under Article I of the Second Schedule to the Tenancy Act. In the view we have taken of the matter, it is not necessary to consider the question of the applicability of that article to the appellants' suit. But it must be pointed out that the suit contemplated by Article 1 of the Second Schedule must be a suit 'for possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person.' A suit by a tenant against a sub-tenant for possession of a holding after the termination of the sub-tenancy cannot strictly be regarded as a suit by a person claiming to be a tenant for possession of a holding from which he has been excluded. The tenant vis-a-vis a sub-tenant is clearly in the position of a landlord, and a suit by him for recovery of possession of the holding after the termination of the sub-tenancy would appear to be a suit by a landlord against the tenant. In the view we have taken that the plaintiffs' suit is barred by time under Article 139, it is not necessary to express any concluded opinion on the question whether a suit of the type, such as the one filed by the appellants, can fall tinder Article 1 of the Second Schedule to the Tenancy Act.

11. For the foregoing reasons, we are of theopinion that the learned Single Judge was rightin his conclusion of dismissing the appellant's suit.In the result, this appeal fails and is dismissed.As our decision is based on the applicability ofArticle 139 of the Limitation Act and no partyrelied on it in any Court, we leave the parties tobear their own costs throughout; and consequently the cross-objection filed by the respondentDasai claiming costs in all the Courts are alsodismissed.


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