S.K. Mal Lodha, J.
1. This is defendants' second appeal under Section 100 CPC directed against the judgment and decree passed by the Additional Civil judge, Udaipur dated November 29, 1978 by which he reversed the judgment and decree dated October 20, 1976 passed by the Munsiff, Udaipur. 2 The plaintiff (tenant) instituted a suit on September 10, 1971 against she defendants (Landlords) who are the legal representatives of Bhaironlal original landlord for possession in respect of a shop from which he was alleged to have been illegally dispossessed on June 16, 1969. The case of the plaintiff was that he was tenant-in-possession of a shop situate at Moti Chohatta at Udaipur on a monthly rent of Rs. 12/- per month and that the landlord disposses him by throwing out his goods. As he was not able to obtain possession though he initiated proceedings under Section 144, CrPC he instituted the suit for getting back its possession. He also prayed that goods mentioned in Schedules A and B may also be restored to him. The defendant landlord resisted the suit on various grounds One of the grounds was that the plaintiff tenant had surrendered the tenancy and voluntarily delivered possession of the shop one month before the alleged date of dispossession i.e. May 16, 1969. Another plea taken was that the suit of the plaintiff-tenant was time-barred for it was not instituted within a period of six months from the date of dispossession under Section 6 of the Specific Relief Act The learned Munsiff, Udaipur by his judgment dated October 20, 1976 dismissed the plaintiff's suit. An appeal was preferred by the plaintiff and the learned Additional Civil Judge, Udaipur amongst others, found:
1. That the suit for possession was within limitation under Article 113 of the Limitation Act, 1963 though it was beyond, six months, and
2. That the possession was not delivered by the plaintiff voluntarily before the alleged date of dispossession.
3. He, therefore, accepted the appeal of the plaintiff in part and ordered for the restoration of possession of the shop to the plaintiff. Certain other relief was also granted for delivering possession of the articles mentioned in Schedule A by his judgment dated November 29; 1978. Feeling aggrieved by the appellate judgment, the defendants-appellants have come up in appeal
4. The show cause notice was ordered to be issued by me on January 4,1979 and in pursuance of that, Mr. R C. Maheshwari appeared for plaintiff-respondent.
5. I have heard Mr. D.S. Shisodiya for the appellants and Mr. R C. Maheshwari for the respondents. Only two points have been raised by the learned Counsel for the appellants in support of the appeal.
6. It was contended by the learned Counsel for the appellant that the. plaintiff's suit for possession was not within limitation as he has alleged that he was dispossessed from the shop which was in his possession otherwise than in the course of law and, therefore, he should have brought the suit within a period of six months from the date of the alleged dispossession under Section 6 of the Specific Relief Act, 1963 He, therefore, submits that the suit having been instituted after more than six months, was clearly time-barred. In support of his arguments, he relied on Mustapha Saheb and Ors. v. Sanitha Pillai and Ors. ILR XXIII Mad 179 and Nair Service Society Ltd. v. K.G. Alaxender and Ors. : 3SCR163 Section 6 of the Specific Relief Act, amongst others, provides that if any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit. Sub-section (2) of Section 6 of the Specific Relief Act lays down that no suit under this section shall be brought after the expiry of six months from the date of dispossession. Sub-section (4) lays down that nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. Article 64 of the Limitation Act, 1963 provides a period of twelve years from the date of dispossession for a suit for possession of immoveable property based on previous possession and not on title when the plaintiff while in possession of the property has been dispossessed. It may be mentioned here that Section 5 of the Specific Relief Act provides that a person entitled to the possession of specific immoveable property may recover it in the manner provided by the Code of Civil Procedure, 1908. In other words possession may be recovered by instituting a suit for ejectment on the basis of title. The expression 'title' includes both possessory as well proprietary title. A suit based on possessory title will be governed by Article 64 and when based on proprietary title, will be governed by Article 65, Limitation Act. It is, therefore, clear that if the dispossessed person without availing himself of the summary remedy provided by Section 6 of the Specific Relief Act brings a suit for possession on the ground of his dispossession by the defendant and not on the proprietary title, the suit would be governed by Article 64 of the Limitation Act. Their Lordships of the Supreme Court in Nair Service Society's case AIR 1968 SC 1165 noticed the decision reported in Mustapha Sahib's case ILR XXIII Mad 179 and thereafter observed:
Mr. Nambiar argues that there cannot be two periods of limitation, namely 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either over-ruled or dissented from. The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immoveable property is based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
Even in a case where the summary remedy under Section 6 is not availed of by the person dispossessed, it will not disentitle him from availing himself of the other remedy provided in the Specific Relief Act though the suit is brought after six months as provided in Section 6(2) of the Specific Relief Act. According to the plaintiff, he was dispossessed from the shop on June 16,1969 and he brought the suit for possession on September 10,1971. In these circumstances, the suit of the plaintiff for possession of the shop based on previous possession and not on title when the plaintiff while in possession of it was dispossessed, is clearly within limitation. The first contention raised by the learned Counsel for the appellant thus has no force.
7. It was next contended by the learned Counsel for the appellant that the plaintiff had already surrendered his tenancy by voluntarily delivering possession of the suit shop to the defendant (landlords), and, therefore, the lower appellate court was not right in decreeing the plaintiff's suit for restoration of possession of the shop. The learned Additional Civil Judge has dealt with the question of surrender exhaustively in the impugned judgment. He, after considering the statement of PW 1 Narainlal, PW 2 Abdul Rashid, PW 3 Rochandas, PW 4 Gopal, PW 6 Abdul Sattar, DW 1 Dhappobai, DW 2 Chaturbhuj and DW 3 Nandram and the endorsement made on the back of the pronote Ex.11 reached the conclusion that from the evidence of the defendant, it has not been proved that the plaintiff vacated the shop in suit on May 16,1969 and delivered its possession to the defendants and that on June 16, 1969, the plaintiff forcibly and illegally attempted to take the possession back. On the other hand he held that from the plaintiff's evidence, it is proved that on June 16,1965, the plaintiff was in possession of the shop as a tenant and on that day, he was forcibly dispossessed. The question whether the plaintiff surrendered his tenancy rights on May 16,1969 as alleged by the defendants is one of fact. As stated above, the learned Additional Civil Judge after appreciating the oral and documentary evidence led by the parties, reached the conclusion that the defendants have not been able to establish that the plaintiff vacated the shop voluntarily on May 16,1969 and delivered its possession to them. There is evidence on record for coming to this conclusion. Learned Counsel appearing for the appellant could not satisfy me that while arriving at this finding the learned Additional Civil Judge has ignored any important oral or documentary evidence led by the defendant. No mistake of law was committed by the learned Additional Civil Judge in holding that the plaintiff was in possession of the shop on June 16,1969 as a tenant and the defendants wrongfully and forcibly dispossessed him. The findings arrived at by the learned Additional Civil Judge in this regard arc not vitiated on account of any error of law or of procedure In these circumstances, the argument of the learned Counsel that the plaintiff voluntarily vacated the shop on May 16, 1969, by surrendering his tenancy rights is untenable.
8. No other point was argued by the learned Counsel for the appellant.
9. This appeal does not involve any substantial question of Jaw. I find no force in it and it is, therefore, dismissed. In the circumstances of the case, I leave the parties to bear their own cost.