1. In this case the appellant-plaintiff demised the suit property to Krishnan Nayar and Kunju Nayar on Adimayavana right on 7th April 1898. In 1900 the lessees assigned their right to the first defendant and the father of the second defendant. The lease contains a provision 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. Accordingly the assignees brought a suit in 1913, for renewal fee. It was then held that the Adimayavana lease being inalienable the plaintiffs in that suit could not obtain a valid assignment and, therefore, their suit was dismissed. The plaintiff now brings the present suit in 1918, to recover possession of the suit properties from the assignee and their representatives. The facts are all recited in the plaint and the first prayer in the plaint is:
That a decree may be passed directing the defendants to surrender the schedule items to the plaintiff by virtue of the Kaichit of 1073, described in paragraph 2 and on the strength of title as the Adimayavana right has ceased.
2. Both the lower Courts have found that the plaintiff's suit is barred by limitation, because Article 143 is applicable. That article provides for a suit in which the plaintiff has become entitled to possession of immovable property by reason of forfeiture or breach of condition. Had this suit been brought by the plaintiff against the lessees, Krishna Nayar and Kunju Nayar, the suit would undoubtedly have come under Article 143, but as I understand that article it only applies to suits to enforce relief claimable by reason of forfeiture or of breach of condition under a contract and can only apply to suits brought against parties who have incurred that forfeiture or committed the breach. 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. It seems to be, therefore, that Article 143 is clearly inapplicable. In fact, when the plea of limitation was first raised in the defendant's written statement, Article 144 was relied on and it was stated that Article 142 is the article which is applicable.
3. The contention is raised for the respondents that they are taken by surprise by this plea that Article 143 is not applicable ; but inasmuch as the defendants did not plead this article in bar in the first Court and both in the grounds of appeal to the lower appellate Court and in the grounds of appeal to this Court, the point has been taken that Article 143 is not applicable ; and inasmuch as it was not in the first place the contention of the defendants that Article 142 is applicable this plea of being taken by surprise cannot be upheld.
4. The question then remains whether the plaintiff's suit is barred by Article 144, in which case the period of 12 years begins when the possession of the defendant becomes adverse to the plaintiff. The defendants got into possession by virtue of their assignment from the original lessees and the lessees were entitled to let anybody into possession during the term of their tenancy which enured for at least 12 years. During that period of 12 years from 1898 the possession of the defendants under the lessees was under the lessees who held under the plaintiff. There can, therefore, be no question of the possession of the defendants being adverse to the plaintiff from the date of their assignment. It could only become adverse after the 12 years' lease had expired and the legal origin of their possession had changed. In that view this suit is within time.
5. It is then contended that Article 142 will apply and the plaintiff must prove that he has been dispossessed of the property within 12 years of the suit. During the 12 years subsequent to 1898 the property was in the possession of the defendants with the permission of the plaintiff's tenants and, therefore, it cannot be said that the plaintiff was dispossessed; for his tenants were entitled to possession and would allow defendants to enter into possession. It is suggested that the defendants, by reason of the assignment in 1900, prescribed for an Adimayavana tenure as against the original lessees and also plaintiff. If that were so their title had become complete before the suit of 1913 was filed.
6. Inasmuch as that suit was based on the allegation that the defendants were the Adimayavana tenants of the plaintiff, the plea that they had obtained such a right by adverse possession should have been pleaded. Not having taken such a plea in that suit, the defendants are precluded under Expl. 4 to Section 11, Civil P.C., from raising it now.
7. The plaintiff's suit seems to have been very inefficiently conducted in the lower Courts and a large number of issues have been framed which seem to be quite irrelevant in view of the fact that the plaintiff does not claim by reason of any forfeiture incurred by the defendants. It is, however, argued that there are other points in the case which would be determined and, therefore, I think it is advisable to refer the appeal back to the lower appellate Court for decision on the other point which it considered unnecessary to decide and any other points that legally arise. The view of the case set out here does not seem to have been pleaded definitely in the lower Courts and, therefore, I think that the respondents are entitled to a further hearing.
8. I may also add that the plaintiff relies on the breach of another condition in the Adimayavana lease; namely that no renewal fee was paid on the expiry of the 12 years' time and consequently he is entitled to recover possession of the property on that ground.
9. I, therefore, set aside the decree and remand the case to the lower appellate Court for further hearing and for decision in the light of the above remarks on the other point or points which were not determined before. It is suggested for the respondents that additional evidence should be taken, but the respondent's vakil has been unable to point out in what respect evidence can now be admitted which should not have been adduced in the trial Court, as the case was understood there. I leave it to the discretion of the lower appellate Court to decide whether any additional evidence is necessary. Costs of this appeal will abide the result.
10. Court fee on the Memorandum of Appeal will be refunded to the appellant.