RAM PRAKASH Vs. MOOLCHAND GUPTA

JUDGEMENT

(1.) THIS appeal by the defendant arises out of a suit filed by the respondent Kunwar Rudra Pra-tap Singh under R. 103 of O. 21. C. P. C.

(2.) BRIEFLY, the facts leading to this appeal are these: The plaintiff Kr. Rudra Pratap Singh purchased Kothi No. 16, Qaiserbagh Palace, Lucknow in the auction sale held in execution proceedings No. 77 of 1956 of the Court of Civil Judge, Luck-now. Lal Chand Pratap Singh was the erstwhile owner of that property. The northern portion of that Kothi was in possession of the defendant-appellant. The plaintiff applied to the court under R. 95 of Order 21, C. P. C. for possession of the property and the possession of the property was accordingly delivered to him. While doing so the defendant was dispossessed from the said portion of the property. He, therefore, moved an application under R. 100 of O. 21, C. P. C., for being put back to possession. The learned Civil Judge allowed that application on 12th Sept., 1964 for delivery of possession of the aforesaid northern portion of the property to the defendant. The defendant was accordingly put in possession of the same. The plaintiff then filed the suit which has given rise to this appeal on 19th March, 1966 alleging inter alia that the defendant was a licensee of the erstwhile owner that the tenancy rights could not be conferred on him in view of the provisions of the Government Grants Act and that his licence had been determined not by the erstwhile owner but also by the plaintiff. He, therefore, filed the suit for a decree for possession of the property by eviction of the defendant. The suit was resisted by the defendant on a variety of grounds. He pleaded, inter alia, that he was a tenant of the accommo-dation in question and not the licensee as alleged and that the suit was barred by time. The learned trial Court dismissed the suit holding that it was barred by time. The plaintiff preferred an appeal before the District Judge. It was held by the Addl. District Judge, Lucknow who allowed the appeal and decreed the suit that the suit was not barred by time and that the defendant was licensee and not the tenant. He also held that the suit was not covered by the provisions of R. 103 of O. 21, C. P. C. aggrieved by that decision the defendant has preferred this second appeal.

(3.) THESE averments made in the plaint clearly make out that the suit was filed under the provision R. 103 of O. 21, C. P. C. However, the plaintiff had stated in para 17 of the plaint that as a matter of precaution the plaintiff also served the defendant with a notice revoking his licence and demanding delivery of possession. The said notice was served on him on 3-2-1966. In view of this averment made in para. 17 of the plaint it was said that the present suit is based on the cause of action which occurred when the licence was revoked by the plaintiff by notice dated 2-2-1966 and the defendant failed to comply with the same. In my view it is manifest from the plaint that the suit was brought by the plaintiff under R. 103 of O. 21, C. P. C. He was aggrieved by the order dated 12-9-1964 which was admittedly passed under R. 101 of O. 21, C. P. C. The period of limitation prescribed under Art. 98 of the Limitation Act for filing a suit under R. 103 of O. 21, C. P. C. is one year commencing from the date of the order passed under R. 101 of O. 21, C. P. C. The present suit was not filed within this period; rather it was filed after the expiry of the period of one year from the date of order passed under R. 101, that being so, the suit was barred by time.