SIDRAM LACHMAYA Vs. MALLAYA LINGAYA CHILAKA

JUDGEMENT

(1.) TWO questions have been referred to this full bench by my brother sen and Bavdekar JJ. , and the two questions are : (1) Whether the possession of a tenant is adverse to the landlord upon the expiration of the tenancy merely because the tenant has not paid rent ? (2) Whether to a suit based upon title by a landlord against his ex-tenant Article 139 is the article which applies, or Article 1441

(2.) FOR the purpose of disposing of these two questions it is sufficient to state just two facts. The plaintiff filed the suit among other reliefs for a relief that he was the owner of the property with which we are concerned in this Full Bench. He was the tenant of the defendant and that tenancy terminated on June 11, 1925, and the suit was filed on July 7, 1938. The plaintiff's contention, with which we are now concerned, was that the title of his landlord had become extinguished under Section 28 of the Indian Limtation Act, that a new title was created in him and therefore he was entitled to the declaration which he sought in the suit.

(3.) MR. Sukthankar for the respondent has contended that it would be open to a landlord to file a suit merely on title and not as a landlord and thereby attract the application of Article 144. Article 144 is a residuary article, and it is a well recognised canon of construction of the Limitation Act that when there is a specific article dealing with a specific subject, that article is to be applied in preference to a general and residuary article like Article 144. Therefore, if in a suit for possession it is established that there was a relationship of landlord and tenant between the parties and that relationship has come to an end, then the only article that can apply is Article 139 and not Article 144. It will be apparent that if that is the correct position, we would not be strictly concerned with the question whether on the determination of the tenancy the possession of the tenant would become adverse or not. The rival arguments on this point are that as the tenant on the determination of the tenancy becomes a trespasser and his possession becomes wrongful, that possession is adverse against the landlord. On the other hand, the contention is that although the possession of the tenant may be wrongful, it is not necessarily adverse, and a distinction is sought to be drawn between possession which may be wrongful and not yet adverse. In our opinion it is not necessary to decide that question, because, as I just said, if Article 139 applies to every case where a landlord sues his tenant, then the question whether the possession of the tenant is adverse or not does not arise. The point from which limitation begins to run is the determination of the tenancy, and once the tenancy is determined, it is immaterial and irrelevant to consider what is the character in which the ex-tenant continues to remain in possession.