KRISHNA RAMBHAU Vs. DHARMA KATHOD KAPSE

JUDGEMENT

(1.) HOWEVER , Mr. ..Karnik strongly urged that Article 109 can -not apply to the facts of the case inasmuch as the said article is applicable (sic) to such plaintiffs to whom the immovable property in dispute belonged. He drew my attention to the wording of Column 1 of the said Article which provides limitation for "suit for profits of the immovable property belonging to the plaintiff" which have been wrongfully received by the defendant. According to Mr. Karnik, it is not anybody's case that the said immovable property ever belonged to the plaintiff. The present plaintiff was and is only a tenant of the land. The said land can never be said to have belonged to the tenant -plaintiff with all the sweeping provisions of the Tenancy Act. The land even now happens to be in possession of the tenant. It is, therefore, strenuously argued by Mr. Karnik that this Article 109 can have no application to the facts of the case and, therefore, the learned Assistant Judge was perfectly justified in holding that the plaintiff's suit was not governed by Article 109 of the Limitation Act.

(2.) NOW , at first sight this argument appears to be attractive. However, the context in which the word "belonging" is used in the first column of this Article, does not seem to convey any element of ownership. This word "belonging'* has not been defined either in the Limitation Act or anywhere else. Prima facie it is capable of conveying the sense of ownership of the immovable property. But it can also mean, in the context, "merely a right to possess". Thus, words "immoveable property belonging to the plaintiff" may mean the one of which the plaintiff is the owner; and also may mean such property, to the possession and profits of which plaintiff has a title without being its owner. It may also thus mean that a property belongs to a man who has a right to use it as of right for some period although it does not belong to him.

(3.) WITH respect, I find myself in agreement with these observations. The same principle was followed by the Division Bench of Madras High Court in the case reported in Md. Shamsgoya v. Otnandu Pillai, A I R 1924 Mad. 224, though I do not find any detailed discussion of the point in the report. There is thus, considerable authority for holding that the words "belonging to the plaintiff" do not necessarily import an element of ownership in the first column of the said Article. It is not necessary, therefore, that the plaintiff who claims the mesne profits on the basis of the defendant having wrongfully recovered the same should be the owner of the property. Not the ownership but the title to the possession of the immovable property appears to be the central theme of this Article. In this view of the matter, the contention of Mr. Karnik fails.