Horace Owen Compton Beasley, Kt., C.J.
1. This Letters Patent Appeal is from a judgment of Phillips, J., in S.A. No. 1520 of 1922. The respondent here was the plaintiff in O.S. No. 26 of 1918 in the Court of the District Munsif at Alathur. He sued for recovery of possession of land from the appellants here, who were the defendants in that suit. The suit, with the exception of a small item which was decreed in the plaintiff's favour, was dismissed. The plaintiff appealed to the Subordinate Judge of South Malabar and he also dismissed the suit on the ground that it was barred by limitation. The plaintiff then presented a second appeal to this High Court and Phillips, J., held that the suit was not barred by limitation and as there were other points in the case for determination he referred the appeal back to the Lower Appellate Court for decision on those other points and any other points that might legally arise. He stated that the view of the case set out before him did not seem to have been pleaded definitely in the Lower Courts and he therefore thought that the respondents were entitled to a further hearing. The defendants in that suit are the appellants here.
2. The only question that we have to decide is whether the suit is barred by limitation or not. The plaintiff in the suit demised the suit property to Krishnan Nair and Kunju Nair on adimayavana right on 7th April, 1898. In 1900, the lessees assigned their right to the 1st defendant and the father of the 2nd defendant. There is a provision in the lease that on the expiry of every 12 years a renewal fee of Rs. 125 shall be paid by the lessee and further documents exchanged between the parties. The assignees who are some of the defendants in this suit brought a suit in 1913 for renewal of the adimayavana lease and for the acceptance of the renewal fee which they had tendered to the plaintiff. It was held in that suit that the adimayavana lease being inalienable, the plaintiffs could not obtain a valid assignment and therefore their suit was dismissed. The appellate decision in that suit is reported in Venkaiagiri Pattar v. Zamorin of Calicut (1917) M.W.N. 419. It was there held that the tenure known as adimayavana or anubhavam tenure is inalienable under Malabar Law. The Bench in that case consisted of Ayling and Napier, JJ. But a Bench consisting of Ayling and Krishnan, JJ., has later taken the contrary view and as Ayling, J., was one of the Bench in the case of Venkatagiri Paltar v. Zamorin of Calicut (1917) M.W.N. 419 his later decision may be taken as altering his former opinion. That case is Zamorin of Calicut v. Unikat Karnavan Samu Nair (1919) 38 M.L.J. 275 and it was held that this adimayavana tenure is not inalienable by custom in South Malabar and that the Jenmi is not entitled to forfeit it On alienation. Evidence of custom was called for in that appeal and it is quite clear, from the judgments, that the Bench held the view that a custom of inalienability had not been made out. On page 286 Ayling, J., says:
The oral evidence has been rightly appreciated by the Subordinate Judge and on a survey of the evidence as to custom, oral and documentary, the conclusion is irresistible that for the period to which it relates no legally enforceable custom of forfeiture on alienation has been proved,
3. The period to which Ayling, J., referred was the period from 1896 onwards. Both the Judges further held that the Subordinate Judge's finding that up to 1896 there was a custom of inalienability involving forfeiture on alienation and that the custom had since fallen into desuetude was unsound; so that this case may be taken as deciding that this tenure is not inalienable and that there is no custom of forfeiture on alienation. Mr. Kuttikrishna Menon argued before us that this decision did not go to the length of deciding that there was no forfeiture on alienation. It clearly goes to that length and it is the latest decision upon the point. In Ayyakutti v. Krishna Pattar : AIR1922Mad274 a Full Bench decided that in the case of land in Malabar held on Santhathi Brahmaswom tenure the landlord has no right of re-entry on alienation of the land by the tenant. The adimayavana tenure is similar to the Santhathi Brahmaswom tenure and, although the question whether such tenures are alienable or not was referred to the Full Bench, they did not think it necessary to decide that question but merely decided that the landlord on alienation had no right of re-entry. The fact that the earlier decision, namely, that in Venkatagiri Pattar v. Zamorin of Calicut (1917) M.W.N. 419 decided that such a tenure was inalienable, has an important bearing on this case because we have to decide what the plaintiff's claim in his suit for recovery of possession was based on. For the appellant here it was argued that the respondent's claim was based on forfeiture on alienation of the property whilst for the respondent it was contended) that it was based on the non-renewal of the tenure at the expiry of 12 years, that it was only after the 12 years had expired that limitation commenced to run and that this is a case to which Article 144 of the Limitation Act applies. The appellant on the other hand, contended that Article 143 is the article applicable and that time commenced to run from the date of the alienation and that therefore the suit is barred by limitation. If Article 143 is the proper one, then clearly the suit is barred by Imitation. Phillips, J., however, held that the proper article is Article 144 and that time only commenced to run when the possession became adverse, namely, after the 12 years' lease had expired. He did not apply Article 143 because that article only applies to suits to enforce relief claimable by reason of forfeiture or of breach of condition under a contract, which in his view could only apply to suits brought against parties who have incurred that forfeiture or committed the breach. He says:
In the present case the defendants are not parties to the lease deed and have not themselves incurred any forfeiture or broken any condition in a contract between them and the plaintiff.
4. In my view, Phillips, J., was wrong in thinking that Article 143 only applies to persons who have themselves incurred the forfeiture because there are decisions of this Court on Article 143 to which the alienee was a party and against whom relief was claimed. Such a case is Madhavan v. Athi Nangiyar I.L.R.(1891) M. 123 : 2 M.L.J. 81. Although it is quite true that in that case the first defendant who was the grantee of the demise was the only one of the defendants who pleaded limitation, the alienees supported the written statement of the first defendant. In Motilal Pal Choudhury v. Chandra Kumar Sen 24 C.W.N. 1064 a lease provided that the lessee was to enjoy the land from generation to generation for purposes of residence without any power of alienation and that in the event of such alienation the lessor would be entitled to khas possession. The lessee sold the land and the lessor sued to recover possession and the alienees were made parties to the suit, and it was held that Article 143 was applicable and the period of limitation was 12 years and time began to run from the date of alienation and not from the date when the lessee surrendered possession to the transferee. In the case in Zamorin of Calicut v. Unikat Karnavan Samn Nair (1919) 38 M.L.J. 275 to which reference has already been made, the suit was to recover possession of properties from the persons, in possession of them, namely, the alienees. This is quite clear from a statement of the facts by Krishnan, J., at page 277 where he says:
If the defendants are right in their contention that no forfeiture was caused by the alienations in their favour...
so that it is quite clear that the alienees were the defendants and it was held that Article 143 applied, that the starting point of limitation is the forfeiture itself and moreover that there is nothing in the article about the lessor's knowledge of the alienation. The general scheme of the Act with regard to Arts. 140 to 144 does not place any such limitation as to parties as in the opinion of Phillips, J., it does. Take, for instance, Article 140 which is a claim for possession of immoveable property by a remainderman or reversioner or a devisee. That must he against anybody who is in possession of it. Similarly Article 141. Also Article 142. Article 143, it appears to us, is not limited to those who have committed the breach of the condition which has entailed forfeiture but also includes those who are in possession by reason of the alienation which may entail forfeiture. On that point I am of the opinion that Phillips, J., was wrong. But I have still to consider what the plaintiff, the respondent here, based his claim upon. The plaint in the suit sets out in paragraph 2 all the details of the grant. It includes at the end, it is quite true, the provision with regard to the renewal at the expiry of 12 years. Then paragraph 3 says:
The adimayavana right holds good for Itteramkandath tarwad only and it cannot be alienated and, if it is alienated, the tarwad forfeits his right by the alienation and then the plaintiff obtains a right for redemption of the items.
5. Then in paragraph 5 it states as follows:
As the adimayavana right which was held by Itteramkandath tarwad was alienated in favour of the defendants it has lapsed and it has been so declared by the High Court decree aforesaid,
and in paragraph 6
it was only by the aforesaid suit in O.S. No. 148 of 1913 that the plaintiff predecessor in sthanam became aware of the alienation of the right held by Itteramkandath tarwad. There was no occasion previous to that of knowing the fact of the alienation.
6. This is an attempt by the plaintiff to get over the bar of limitation by pleading ignorance of the alienation until a subsequent date though in law ignorance would not prevent time running against him. Taking the plaint by itself, it seems to me to claim to recover possession of the property because of the alienation by the original grantees but the matter is made more certain from the issues framed in that suit. They were as follows: ' (1) What is the nature of the grant in favour of Krishnan Nair and Kunju Nair? (2) Has the holding been forfeited by reason of the alienations alleged? (3) If so, has the plaintiff any right of re-entry? (4) Has the plaintiff waived his right to enforce the forfeiture if any? (5) Is the suit barred by limitation? (6) Is the price of paddy claimed correct? (7) Is the suit bad for want of first defendant's alienees as parties defendant? (8) To what relief is the plaint entitled?' There is no issue there as to a right to recover possession on non-renewal. The suit was fought out in the District Munsif's Court and in the Subordinate Judge's Court on the footing of forfeiture by alienation. It is true that some of the defendants themselves pleaded adverse possession which would be Article 144. But the case contended for by the plaintiff, the respondent here, in the Trial Court and in the Lower Appellate Court was one of forfeiture on alienation and we are satisfied that it was the decision which he had got in his favour in Venkatagiri Pattar v. Zamorin of Calicut (1917) M.W.N. 419 and the view taken by that Court as to the custom of inalienability of such a tenure that enabled him to file his suit and claim that, as the property had been alienated, he was entitled to possession of it on the ground of forfeiture. The Subordinate Judge found that, as the tenure was determined by forfeiture, the plaintiff, the respondent here, was entitled to resume the properties; but with regard to the question of limitation he held that as the alienation took place in 1900 the forfeiture was incurred then and as the suit was instituted more than 12 years after that it -was clearly barred by Article 143 of the Limitation Act. The case presented in the second appeal was, in my view, a totally different case to that in the Lower Appellate Court and the District: Munsif's Court and we are clearly of the opinion that no such claim as is now put forward, namely, that of a right to possession on account of non-renewal of the tenure at the expiration of 12 years was ever in contemplation. I am of the view that the respondent should not be allowed to put forward a totally different case to that upon which the suit was fought in the Lower Courts. His plaint is quite clear and the claim is based upon a forfeiture by reason of alienation and nothing else. In this Court we intend to confine ourselves to that claim. The article applicable is clearly Article 143 and limitation commenced to run from the date of the alienation. In my view, the respondent's claim in the Court below was clearly barred. It is not necessary for me to express any opinion as to whether or not such tenures are inalienable. I merely content myself with saying that the latest decision upon the point, namely, that in Zamorin of Calicut v. Unikat Karnavan Samu Nair (1919) 38 M.L.T. 275 decided that there is no custom in Malabar against alienation. The Letters Patent Appeal is therefore allowed with costs to appellant only. One set of costs. Cross-objections allowed without costs.
7. I agree.