Om Prakash, J.
1. This appeal is directed against an appellate judgment and decree of the learned District Judge, Mahasu, whereby an appeal against a decree of the learned Subordinate Judge, Theog, was allowed and the suit of the appellants was dismissed. The appellants had based their suit on the following allegation's :
2. The appellants are the proprietors of shops numbered as x@128 and x@129, (these shops, in fact, constituted one shop, being separated by a partition only), situated in Khasra No. 76, Shai Bazar Theog. Gonda and Hamira, two brothers, the predecessors-in-interest of the appellants, had, on the 28th July, 1915, mortgaged with possession the above shops, along with other property, with Dila Ram and Arjun. The mortgage was redeemed on the basis of mutation No. 30, sanctioned on the 14th June. 1945. The predecessors-in-interest of the appellants got back possession of the property redeemed excepting shops Nos. x@128 and x@129. Possession of those shops could not be obtained as they were found in possession of the Ruler of Theog State through Faquiriya, the predecessor-in-interest of respondents Nos. 1 to 5 Faquiriya was holding the shops as a tenant under the Ruler of Theog. After the integration of Theog Slate into Himachal Pradesh, shops x@128 and x@129 came to be in the possession of the Himachal Pradesh Government, through Faquiriya. The Himachal Pradesh Govt. transferred the possession of the shops to the Small Town Committee Theog, respondent No. 6. The appellants had made representations to the Himachal Pradesh Government that they were the owners of the shops and possession should be delivered to them. After a lengthy correspondence, the Himachal Pradesh Government and respondent No. 6 recognized the title of the appellants to the shops and delivered them symbolical possession.
Later on, the appellants got actual possession also, of shop x@129. They could not get actual possession of shop x@128 as Faquiriya had refused to deliver possession. He had, even, refused to attorn to the appellants as his land-lords. On the other hand, Faquiriya had, repudiated the title of the appellants. Faquiriya was in illegal possession of the shop x@128 and the appellants, who were the owners of the shop, were entitled to recover possession from him. The appellants were, further, entitled to get an amount of Rs. 300 as compensation for three years for use and occupation of the shop. Faquiriya had paid an amount of Rs. 749-50 nP. to respondent No. 6 as rent of the shop; the appellants were entitled to get that amount also. The appellants had requested respondent No. 6 to pay the above amount to them but respondent No. 6 had not acceded to their request, Respondent No. 6 had informed the appellants that Faquiriya was claiming back the amount and that in the circumstances, the amount will be paid to the person who may be adjudged to be entitled to get it by a civil court.
3. On the above allegations, the appellants prayed for possession of shop x@128, for the recovery of Rs. 300 and for a declaration that they were entitled to get Rs. 749.50 nP. lying with respondent No. 6.
4. The suit was resisted by respondents Nos. 1 to 5, on various grounds. The grounds, which are relevant for the decision of the present appeal, were that the appellants were not the owners of the shop, that the shop was given to Faquiriya by the Ruler of Theog State and he had become the owner of the shop by adverse possession, that respondents Nos. 1 to 5 were not liable to pay any amount to the appellants, that they were entitled to get back the amount paid to respondent No. 6 and that, the suit was barred by time.
5. Respondent No. 6 did not contest the suit.
6. The learned Subordinate Judge, Theog, held that appellants were the owners of the shop, that Faquiriya had not acquired any interest in the shop by adverse possession, that the appellants were entitled to get Rs. 300 as compensation for use and occupation and were also entitled to get the amount of Rs. 740-50 nP., lying with respondent No. 6 and that the suit was not barred by time. As a result of his findings, the learned Subordinate Judge, by his judgment dated the 30th November, 1962, decreed the suit of the appellants.
7. Respondents Nos. 1 to 5, went up in appeal to the learned District Judge, against the decree of the Subordinate Judge. The appeal was presented on 13-2-63, the day on which the District Court had opened, after winter vacation. The appeal was filed on a court-fee of Re. 1 only. An application, under Section 149 C. P. C., for the grant of time, for making food the deficiency, in court-fee, was filed, along with the appeal. It was stated, in the application, that the counsel for respondents Nos. 1 to 5 had reached Simla, from Benares, on the very day of the re-opening of the Courts and was unable to get the challan passed and to obtain the necessary court-fee. The learned District Judge allowed the application. The deficiency in court-fee, on appeal, was made good within the time allowed. At the time of arguments, before the learned District Judge, am objection was taken, on behalf of the appellants, that time for making good the deficiency in court-fee should not have been granted to respondents Nos. 1 to 5 and that as the appeal, as originally presented, did not bear full court-fee, it was not a legal document and should have been rejected. The learned District Judge over-ruled the objection. On merits of the ease, he agreed with the learned Subordinate Judge that the appellants were the owners of the shop; but he held that the suit of the appellants was barred by time. He, therefore, allowed the appeal and after setting aside the decree of the Subordinate Judge, dismissed the suit.
8. Aggrieved by the order of the learned District Judge, the appellants have filed the present second appeal. Objection, against the grant of time, for making good the deficiency in court-fee, which had been taken up before the learned District Judge, was repeated in this Court. It was contended that the learned District Judge did not exercise his discretion, under Section 149 C. P. C., properly in granting time to make up deficiency in court-fee. It was urged that, by granting time, the learned District Judge had deprived the appellants of the plea that the appeal when properly stamped was barred by limitation. Now, an appellate Court should not interfere with the discretion of the lower Court, under Section 149 C. P. C., unless it is shown that the lower Court had exercised its discretion in violation of any recognized principle of law or that the exercise of the discretion had caused gross injustice to the other party, vide Ganesh Prasad v. Nareridra Nath. AIR 1953 SC 431. It has not been shown that the learned District Judge had violated any principle of law by granting time to respondents Nos. 1 to 5. The mere fact, that the appellants were deprived of their right to plead the bar of limitation, on account of the grant of time for making good the deficiency in court-fee, will not warrant the conclusion that gross injustice was done to the appellants by the grant of time. It is well settled that discretion, conferred on a Court, under Section 149 C.P.C., is normally to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of similar kind, vide Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB). It is not suggested that there was any mala fide, on the part of respondents Nos. 1 to 5. The full court-fee could not be paid on the appeal as the counsel for respondents Nos. 1 to 5 had reached Simla from Benares, after winter vacation, on the very day of the reopening of the Courts and was unable to obtain the full court-fee. The learned District Judge has pointed out, in his order, that court-fee is not available at 'Kelleston' where the District Court is located and that it has to be purchased from Kasumpti where too it is not available quite often. This has not been disputed before me. For the reasons stated above, I am of the opinion, that the learned District Judge exercised his discretion properly, in granting time to respondents Nos. 1 to 5, for paying deficient court-fee. His order does not require any interference.
9. The authorities, Shahadat v. Hukam Singh, AIR 1924 Lah 401 and Custodian, Evacuee Property Punjab v. Prabhu Dayal, AIR 1960 Punj 298 cited by the learned counsel for the appellants, have got no relevancy to the case, in hand. In those cases, time for making deficiency good, in court-fee, was neither asked for nor granted.
10. The next question, which requires decision, is whether the shop /128 belonged to the appellants. The appellants had produced' oral as well as documentary evidence with respect to the above question. (Then after discussing evidence (paras 10 to 14) His Lordship proceeded).
15. The evidence, adduced by the appellants, which has been discussed above, establishes that the ownership of the site under the shop vested in the Ruler of the erstwhile Theog State, and after the formation of Himachal Pradesh, in Himachal Pradesh Government and that the shop was constructed by Gonda and Hamira, the predecessors-in-interest of the appellants, and belonged to them. The evidence, further, proves that Faquiriya had come into possession of the shop in 1988 B, when the shop was under mortgage with Arjun and Dila Ram and that he had, later on, attorned to the Ruler of Theog State and had been paying rent at the rate of Rs. 25 per year to the Ruler. The evidence, also, establishes that Faquiriya had always treated himself as the tenant of the shop under the Ruler of Theog and had never claimed proprietary rights in the shop.
16. It was contended, on behalf of the appellants, that as the appellants were the owners of the shop and Faquiriya was its tenant, respondents Nos. 1 to 5, the successors-in-interest of Faquiriya, were estopped, under Section 116 Evidence Act, from denying their title and the appellants were entitled to get possession of the shop on this short ground. The contention, raised, does not appear to have force. There is no evidence that relationship of landlord and tenant existed between Gonda or the appellants and Faquiriya. Faquiriya was a tenant under the Ruler of Theog. The appellants do not claim through the Ruler of Theog. Faquiriya had, specifically, denied that he was a tenant under the mortgagees or under Gonda, in the suit, filed by Gonda for ejectment, in 1944. Faquiriya had, even, denied the title of Gonda to the shop. It is true that the Government and respondent No. 6 had recognized the title of the appellants to the shop. But that recognition did not establish the relationship of a tenant and landlord between Faquiriya and the appellants. As the relationship of landlord and tenant never existed between Faquiriya and Gonda or the appellants, the provisions of Section 116 Evidence Act were not attracted and respondents Nos. 1 to 5 were not estopped from denying the title of the appellants to the shop.
17. It was, next, contended, on behalf of the appellants, that the learned District Judge erred in holding that the suit of the appellants was barred by time. It was argued that the suit was based on title and was governed by Article 144 Limitation Act and that as respondents Nos. 1 to 5 had failed to prove that Faquiriya had acquired title to the shop by adverse possession, the suit of the appellants should have been held to be within time. On the other hand, it was argued, on behalf of respondents Nos. 1 to 5, that the suit was based on possession and dispossession and Article 142, and not Article 144, Limitation Act, applied and that as the suit was filed more than twelve years from the date of dispossession, it was, rightly, held to be barred by time. The argument of respondents Nos. 1 to 5 appears to be sound. Article 144 Limitation Act is a residuary article applicable to suits for possession of immovable property not otherwise especially provided for in the Act. That Article would apply where there is no other special Article applicable. If, however, there is a special Article, which applies, Article 144 would be completely excluded and would not be applicable, vide Bhindhyachal Chand v. Ram Gharib, AIR 1934 All 993 (FB). So, the point to be seen is whether the present suit fell within the four corners of Article 142 Limitation Act. If it fell, under that Article, Article 144 was excluded. A suit will fall under Article 142, if it is for possession of immovable properly and the plaintiff while in possession of the property, was dispossessed or had discontinued possession.
The present suit was for possession of immovable property, by ejectment of respondents Nos. 1 to 5. It was alleged, in the plaint, that the Ruler of Theog had taken possession of the shop when it was under mortgage. It was, further, alleged that the appellants did not know how the Ruler of Theog had taken possession of the shop. The clear inference, from the above allegations, was that Gonda, the predecessor-in-interest of the appellants, who was in possession of the shop, through the mortgagees, was dispossessed in the year 2002-3, when the Ruler of Theog had come in to possession and had claimed and got rent from Faquiriya who was in actual possession of the shop. Gonda had redeemed the shop in 1943. He was entitled to get actual and physical possession of the shop after that. In 1944, Gonda had instituted a suit for ejectment of Faquiriya on the allegation that Faquiriya was a tenant under the mortgagees. Faquiriya had denied that he was a tenant under the mortgagees or Gonda. He had pleaded that he was a tenant under the Ruler of Theog. Faquiriya must be deemed to have dispossessed Gonda in 1944, if not earlier. The suit of the appellants was for possession of the property, from which Gonda, through whom the appellants claimed, had been dispossessed. The suit fell within the ambit of Article 142 Limitation Act and the residuary Article 144 would not apply. The burden lay on the appellants to prove that the suit was filed within twelve years of the date of dispossession. It is true that the appellants had established that they had a title to the shop. But this fact, in the circumstances of the case, could not dispense with the proof of the appellants having been in possession of the shop within twelve years of the date of the suit. It was observed in Official Receiver of East Godavari v. Chava Govindaraju, AIR 1940 Mad 798 (FB) that:
'It is wrong to say that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows in addition to title, that he has been in possession of the property within 12 years of the suit. The burden lies upon the plaintiff to prove that he was in possession within 12 years of the suit; the onus is not upon the defendant to prove adverse possession for a period of 12 years.'
18. The appellants, on whom the burden lay to prove, that they had been in possession of the shop within twelve years, had miserably failed to discharge that burden. The copies of the Jamabandis, filed by the appellants, themselves, conclusively showed that Faquiriya was in possession of the shop in 1988 B, and had continued to be in possession since that year. Gonda or the appellants had never been in possession of the shop after 1988 B. Faquiriya had dispossessed Gonda in 1944, if not earlier as shown above. The delivery of symbolical possession, by respondent No. 6, to the appellants, did not, and could not, have the effect of interrupting the possession of Faquiriya, and putting the appellants in actual possession of the shop. Faquiriya continued to be in possession, despite the delivery of symbolical possession. The appellants had filed the suit to recover possession of the shop on 16-7-60. It was nearly sixteen years after Faquiriya had repudiated the title of Gonda and had indubitably dispossessed him in 1944. The suit, which was instituted more than twelve years from the date of dispossession was barred by time.
19. The facts, in Behari Lal v. Narain Das, AIR 1935 Lah 475 (FB) were analogous to the facts of the present case. In that case, the plaintiffs had brought a suit for possession against the defendants alleging that they were the owners of the house in dispute and had given the same on lease to Nabi Bakhsh defendant No. 2 in the year 1927, that subsequently Nabi Bakhsh had granted a sub-lease to defendant No. 1, that thereafter they had sued Nabi Bakhsh and defendant No. 1 for rent, wherein defendant No. 1 had denied their title and had also denied that he was a tenant under Nabi Bakhsh and that they had, therefore, brought the suit for recovery of possession. On the above facts, it was held, by the Full Bench, that Article 142 Limitation Act, and not Article 144, applied to the case, though the plaintiffs had proved their title to the property in suit.
20. The suit of the appellant for possession of the shop was rightly held to be barred by time under Article 142 Limitation Act. As fine suit was barred, by limitation, for the main relief of possession, it was also barred for the ether two reliefs of recovery of Rs. 350 and declaration, which were only subsidiary and ancillary reliefs.
21. The result is that the appeal fails and is dismissed with costs of respondents Nos. 1 to 5.