LATIF AHMAD Vs. AMTUL RAHMAN

JUDGEMENT

(1.) THIS is a defendants' second appeal in a suit for recovery of Rs. 2,235/-. The plaintiff came to the court with the allegations that the first defendant Jeet Ram was the tenant on payment of a rent of Rs. 50/- per month of certain land in the nature of a Gher; that the said defendant No. 1 sub-let the Gher to the second defendant Latif Ahmad without the plaintiff' s permission and a suit, being Suit No. 225 of 1959, was instituted by the plaintiff for their ejectment and arrears of rent, as well as damages for unlawful use and occupation for the period ending on May 12, 1959. The suit was decreed. The first defendant in the present suit, namely, Jeet Ram, filed an appeal and prayed for the facility of paying the decretal amount in instalments. The second defendant Latif Ahmad also filed an appeal. His case was that he was not a sub-tenant but a tenant of the plaintiff and was accordingly not liable to ejectment. Jeet Ram' s appeal was allowed but that of Latif Ahmad was dismissed. When the decree was put into execution, one Faiz Mohammad Khan, who has been impleaded as third defendant in the present suit, obstructed the execution of the decree and proceedings were taken under O. 21, R. 97 of the Civil P. C. which was decided in favour of the plaintiff. Thereupon Faiz Mohammed Khan filed a suit, being Suit No. 41 of 1962, for getting over the order under O. 21, R. 98 of the Civil P. C. The suit was dismissed. His appeal against that decree was also dismissed.

(2.) THE present suit was filed on May 26, 1965 for recovery of damages for unlawful use and occupation for the period from 12th May, 1959 to 16th Oct. 1964. THE question which was raised in the forefront by the defendants in the present suit was of limitation. According to the plaintiff, the suit was governed by Art. 120 of the Indian Limitation Act, 1908 which prescribed a period of 6 years. THE learned Munsif held that the suit was governed by Art. 113 of the Indian Limitation Act, 1963 which prescribed a limitation of three years only and in this view of the matter decreed the suit for recovery of Rs. 800/- only against the first defendant with proportionate costs, but dismissed the suit as against defendants Nos. 2 and 3. For decreeing the suit only against the first defendant and dismissing it against defendants Nos. 2 and 3, the trial court held that there was a privity of contract only between the plaintiff and the first defendant and on termination of that privity of contract, the first defendant ceased to have any right to retain possession over the land in suit and was under an obligation to deliver back the same to the plaintiff. He alone was thus liable to pay damages to the plaintiff, in the present suit.

(3.) IT was then claimed by Mr. Nigam that no decree could have been passed against either of the defendants Nos. 2 and 3, but he was unable to justify the reasoning adopted by the trial court, namely, on the ground that there was no privity of contract between the plaintiff and the defendants Nos. 2 and 3. In Zawar Hasan v. Rakhaldas Banerji (AIR 1956 All 272) it has been held by a learned single Judge of this Court that the right to recover damages for use and occupation does not arise out of anything contained in the Transfer of Property Act but it is a right under the general law for the recovery by the owner of damages from a person who has used the property. There is no question of any privity of contract in such a case. IT is the own case of defendants Nos. 2 and 3 that they were in possession of the property. They have accordingly been rightly held to be liable to pay damages decreed by the lower appellate court.