1. This is the defendants' second appeal against the reversing judgment of Sri P.C. De, Subordinate Judge of Sambalpur. The plaintiff's case was one for declaration of title and for recovery of possession of the suit lands appertaining to H. S. plot Nos. 750 and 774. The plaintiff claimed an area of 1.52 acres out of plot No. 750, the total area of which is 3.40 acres and the entire plot of 774. He based his claim upon an unregistered lease-deed which purported to have been granted by the landlord in his favour on 15-4-1939 and further on a registered lease-deed (Ex, 3) granted by the same landlord on 5-11-43.
2. The defence was that, in fact, the disputed lands were leased out to the predecessors-in-interest of the defendants by virtue of four leases of the years 1912, 1915, 1916 and 1921, and that since then they have been in possession of them. They had also taken up the plea of limitation.
3. The trial Court dismissed the suit finding that the plaintiff was not able to prove his title and that the unregistered lease-deed of the year 1939 was suspicious. The learned appellate Court, in a well-discussed judgment, reversed the finding of the trial Court. He found that the disputed lands were not covered by the title-deeds proved by the defendants and that the title of the plaintiff was fully established by virtue of the registered lease-deed of 1943. He had also discussed the question of possession and found that the defendants had not been able to prove title by adverse possession for 12 years.
4. Mr. M.S. Rao, appearing on behalf of the appellants, has first urged that the suit must be thrown out as barred by limitation as provided for under Section 94, C. P. Tenancy Act, 1898. The section runs thus:
'94 (1) The period of limitation for a suit instituted by a tenant other than absolute-occupancy tenant to recover possession of land from which he has been ejected shall be two years from the date on which he is ejected.''
This special point of limitation was never taken in any of the Courts below and has now beentaken for the first time in this Second Appeal. On examination of Section 94 it appears to me that the Act itself governs the relationship between the landlord and the tenant, and that the suit, contemplated under Section 94, is a suit when the tenant has been dispossessed by the landlord. I feel strengthened in my view by Section 92 of the said Act which also provides for summary procedure for recovery of possession on an application made to the Revenue Officer within one year from the date of his ejectment.
5. Mr. Rao strongly relies upon two decisions reported in -- 'Madhuban Ganda v. Basant Khetri', AIR 1947 Pat 424 (A) and -- 'Ambadas v. Dattatraya', AIR 1945 Nag 78 (B). Both these cases are governed by Article 1 of Schedule 2, C. P. Tenancy Act, 1920. The language of Article 1, Schedule 2 is distinctly different from the language of. Section 94 of Act of 1898. Article 1 of Schedule 2 runs thus:
'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'.'
The words 'by any person' make the whole difference on account of which their Lordships in these two cases laid down the principle that even though the tenant would be dispossessed by a stranger-trespasser, the suit would have to be brought within the special period of limitation provided, for in C. P. Tenancy Act, 1920 and not tinder the provisions of Article 142, Limitation Act. Without further discussing the question we find that that question does not really arise in the present case in as much as the registered lease-deed which is relied upon by the plaintiff as the document of his tenancy rights is dated 5-11-43 and the present suit has been brought within two years from his title deed, that is, on 26-7-45.
6. Mr. Rao contends that the learned lower appellate Court has misdirected himself in not examining the evidence from the point of view whether he was dispossessed within two years of his possession. In my view when he has proved his title within two years of the suit, the question of extinguishment of his title by lapse of time, as provided for even under Article 1 of Schedule 2, does not arise.
7. The further point urged by Mr. Rao is that the lower appellate Court has completely misdirected himself in having wrongly thrown the onus on the defendant to prove his adverse possession for 12 years. His contention is that the plaintiff having brought a suit for declaration of title and for recovery of possession the suit even if it is governed by Article 142, Limitation Act, he (the plaintiff) has got to prove his possession and dispossession within 12 years. This argument of Mr. Rao completely ignores the most important 'feature that both the documents, relied on by the plaintiff and specially the registered document of the 1943, are within 2 years of the suit. As such, the learned lower appellate Court took the right view that if the defendant asserts title to the property by virtue of possession he has got to prove a matured title by 12 years of adverse possession. The second point taken by Mr. Rao has, therefore, no substance.
8. It is further urged by Mr. Rao by reference to deposition of the landlord who has been examined as a witness on behalf of the plaintiff that the landlord maintains a register of leases granted by him and that on account of the non-production of that register the lower appellate Court ought to have drawn an inference against the plaintiff. Now the lower appellate Court having examined the title deeds of four years, referred to above, relied on by the defendant has come to a definite finding that in fact they do not appertain to the disputed lands, and, as such, the defendants have failed to prove title to the property by virtue of those deeds. He has further found that the disputed lands are clearly covered by registered lease deed Ex. 3. In view of these materials, in my opinion, the lower appellate Court was justified in not attaching importance to the non-production of the register by the landlord.
9. The appeal, therefore, fails and dismissed with costs.