M. M. Ismail, C.J.
1. This is an appeal, against the Judgment and decree of Sethuraman, J., dated 21st November, 1975, rendered in S. A. No. 136 of 1973. The suit property admittedly belonged to one Muthayya Udayar, who had two sons, by name, Ramaswami and Marudachalam. Ramaswami died long ago and his son Mariappan, the first defendant in the suit, and Marudachalam entered into a partition on 10th May, 1939, under which each of them got a half share in the suit property. The half share of the property allotted to Marudachalam was alleged to have been leased in favour of the first defendant under Exhibit A-2 dated 10th May, 1939, i. e., the same day as the date of the partition. On 9th April, 1969, the first defendant sold, not only his half share in the suit property, but also, the other half share of Marudachalam, for a consideration of Rs. 7,200 in favour of the second defendant. The plaintiff and the third defendant are the sons of Marudachalam. The plaintiff filed the present suit for partition and separate possession of 1/4 share in the suit property, viz., a half share in Marudachala's share of the suit property, the other half going to the third defendant, on the ground that the first defendant had no right to alienate the property belonging to Marudachalam.
2. A written statement was filed only by the second defendant, the first defendant and the third defendant not contesting the suit. According to the second defendant, Marudachalam had, during his life time, sold his half share of the suit property to the first defendant for a sum of Rs. 75, that the first defendant had thus become the absolute owner of the entire property and therefore the first defendant was entitled to execute the conveyance validly in favour of the second defendant. The second defendant also put forward a plea that the suit was barred by limitation.
3. On the basis of these pleadings the trial Court first framed issues and then recast them as follows:
1. Whether the deed of lease dated 10th May, 1939, is true, valid and admissible in evidence.
2. Whether the oral sale pleaded by the second defendant is true?
3. Whether the sale in favour of the second defendant dated 9th April, 1969 is true, valid and binding on the plaintiff?
4. Whether the suit is in time?
5. Whether the second defendant has perfected title by adverse possession?
6. To what relief is the plaintiff entitled?
The trial Court by its judgment and decree dated 22nd February, 1971, held that Exhibit A-2 being unregistered was not admissible in evidence, and that the second defendant had not proved that he had perfected title by adverse possession, and consequently decreed the suit for partition and separate possession of the plaintiff's 1/4 share. The appeal preferred by the second defendant to the Court of the Subordinate Judge of Coimbatore was dismissed. It was thereafter that the second defendant preferred the second appeal to this Court, referred to above. The learned Judge in his judgment points out:
The only point urged by him (learned Counsel for the second defendant) in his appeal was that the present suit was barred by limitation under Article 67 of the Limitation Act.
The learned Judge held that Exhibit A-2, though unregistered could be looked into for a collateral purpose, namely, as to when the lease determined, that in this case the lease determined on 10th May, 1940, that consequently under Article 67 of the schedule to the Limitation Act of 1963, the suit should have been instituted by May, 1952, and that therefore the suit having been actually instituted in 1969 was barred by limitation. Hence the learned Judge dismissed the suit instituted by the plaintiff, on this sole ground, namely, bar of limitation under Article 67 of the schedule to the Limitation Act. It is the correctness of this conclusion that is challenged in the present Letters Patent appeal, with the leave of the learned Judge.
4. We are clearly of the opinion that the conclusion of the learned Judge is erroneous. Article 67 of the schedule to the Limitation Act of 1963 reads as follows;
_____________________________________________________________________________________________________Description of Period of Time from which period Suit. Limitation begins to run._____________________________________________________________________________________________________67. By a landlord to recover Twelve When the tenancy is possession years. determined. from a tenant. _____________________________________________________________________________________________________
Consequently the said article can apply only when the landlord files a suit for recovery of possession of the property from the tenant. As we pointed out already, the present is not a suit by a landlord for recovery of possession of the property from the tenant, but is one for partition and separate possession of the plaintiff's 1/4 share. As a matter of fact, the suit has been valued under Section 37(1) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. It is not even the case of the second defendant that the suit filed as one for partition was not maintainable and that the suit should have been filed as one for recovery of possession and relevant Court-fee should have been paid. Under these circumstances, the suit being one for partition valued under (section 37 of the Court-fees Act, 1955, for the purpose of Court-fee and jurisdiction, Article 67 of the schedule to the Limitation Act of 1963, referred to above, can have no application. Consequently the learned Judge is in error.
6. Even apart from this, we have to consider the question whether the suit can be said to be barred by limitation. As we pointed out already, the only ground urged by the second defendant was that the first defendant was a lessee of the suit property from Marudachalam, that the lease commenced in 1939, that the lease determined in 1940, that the tenant had not paid any rent and that neither Marudachalam nor the plaintiff nor the third defendant collected any rent. We are of the opinion that the tenant cannot claim title to the demised property by adverse possession, unless he surrenders possession of the property to the landlord. Mere failure on the part of the tenant to pay rent regularly to the landlord cannot clothe him with a right to claim title by prescription. After all, a claim of title by prescription is one of animus, and there must have been some overt act on the part of the tenant that he intends to claim title in himself hostile to the title of the lessor. No such case has been put forward or proved in this case, and, therefore, even independently of Article 67 of the schedule to the Limitation Act, 1963, adverse possession cannot be said to have been established in the present case. On this ground also the suit instituted by the plaintiff cannot be dismissed.
6. Consequently the appeal is allowed, the judgment and decree of Sethuraman, J., dated 21st November, 1975, in S. A. No. 136 of 1973 are set aside, and the said second appeal will stand dismissed. There will be no order as to costs.