GULABCHAND DAULATRAM AGARWAL Vs. DATTA MANDIR SANSTHAN TRUST

JUDGEMENT

(1.) The question involved in this Second Appeal is one of interaction between the provisions of Article 139 of the Limitation Act, 1908 and section 28 thereof. The question can be simplified and stated briefly as follows:--- A leased certain lands to B for a period of 10 years. After expiry of the lease, A becomes entitled to possession of the land. But A does nothing against B and B continue to be in possession without payment or rent to A. After nearly 35 years A sells the same land to C . Question is as to whether A had not lost his title to the lands by virtue of the provisions of section 28 of the Limitation Act, 1908 read with Article 139 thereof and whether B had any subsisting title which he could convey to C. This, in short, is question when reduced down to its bones.

(2.) Let me now state the facts of the present case:--- The suit lands admittedly belonged, originally, to Suryajirao Naik Nimbalkar. They were the Jagir lands governed by the Watan Act. On 23-7-1912 a sanad was executed in favour of Suryakirao Naik Nimbalkar in that behalf. On 18-8-1924, Suryajirao executed a lease for a period of 10 years in favour of defendant No. 1, the temple. The lease expired by the efflux of time on 18-8-1934. This is a finding of facts recorded by both the courts below and about that fact there exist no dispute at this stage. Further, there exists no dispute at least in this Court in this appeal that from 1934 till the year 1969 defendant No. 1 had not paid anything by way of rent to the Jahagirdar. In the meantime, in the year 1955, the Jagir came to be abolished and the lands were technically resumed by the Government. An order of regrant came to be passed in favour of the Jahagirdar on 1-8-1962. It is, however, common ground in this Court that the possession of the lands was not with the Jahagirdar on the date of the resumption and the possession continued to be with defendant No. 1, either actually or constructively all the time form 1934 after the determination of the lease. No doubt it was contended on behalf of the present appellant in the lower Court that rent was paid by defendant No. 1 to the Jahagirdar till the year 1962 and that after the abolition of the Jagir defendant No. 1 had paid rent to the Government. But all those contentions have been negatived by the lower Court and those findings are not called in question before me; which is the reason why I have mentioned above that there exists no dispute on the question that defendant No. 1 has been in possession of the suit lands all the time. It continue till the year 1969 and even thereafter without payment or rent either to Jahagirdar or to the present appellant/plaintiff, who claims through the Jahagirdar. On 17-3-1969 the Jahagirdar Shri Naik Nimbalkar sold the suit land to the plaintiff, who is the appellant before me, (he will be referred to hereinafter as the plaintiff and respondent No. 1 will be referred to as defendant No. 1"). On 18-3-1969 the plaintiff gave notice to defendant No. 1 demanding rent in respect of the suit land. Defendant No. 1 refused to pay any rent to the plaintiff by denying his title and claiming title in itself. The plaintiff, therefore, filed an eviction suit against defendant No. 1 contending that he has terminated the defendants tenancy and had become entitled to possession of the suit land, inter alia, on the ground of nonpayment of rent. That was Civil Suit No. 164/69. In that suit, defendant No. 1 came out with the consistent contention that the plaintiff had no title to the suit land and that there existed no landlord-tenant relationship between the plaintiff and the defendant. This contention was upheld by the trial Court. On behalf of the plaintiff, it was sought to be pointed out that the lease deed executed by the Jahagirdar in favour of present defendant No. 1 on 18-8-1924 brought about the landlord-tenant relationship between the Jahagirdar, who was the predecessor-in title of the plaintiff, and defendant No. 1 and that the tenancy continued till the date of the suit. However, the trial Court came to the conclusion that a subsisting landlord-tenant relationship between the plaintiff and defendant No. 1 was not established by the plaintiff. The plaintiffs suit for eviction was, therefore, dismissed by the trial Court.

(3.) In appeal, more or less, the same view has been taken by the Appeal Court. It appears that the certified copy of the lease deed was not taken on record because the loss of the original lease deed was not established and the Court came to the conclusion that a subsisting landlord tenant relationship with defendant No. 1 was not established by the plaintiff. The appeal was, therefore, dismissed by the Appeal Court.