KAKUMANI RATHIAH Vs. PATHAN ASHA BIBI

JUDGEMENT

(1.) This second appeal has been referred to us by our learned brother, Basi Reddy J., as it involves an important question of law as regards the true construction of Section 10 and Articles 134, 134-A and 134-B of the Limitation Act.

(2.) The brief facts for purposes of determination of this question involved in the case may now be stated. The respondents have filed a suit for recovery of the suit schedule properties and for mesne profits and for future rents on the ground that the mutawallis were not empowered to grant the lease for more than three years. In the instant case, the leases that were granted by Mutawallis under Ex. B. 16, dated 21-5-1873 were for 92 years and under Ex. A-2 dated 16-1-1931 for 36 years. The appellants as defendants stated that they took the leases from the predecessors, in interest of the plaintiffs and that they have a right to be in possession of the suit lands and that, since the suit was filed after 12 years after the death of the husbands of plaintiffs 1 and 2, it is barred by limitation and further that the suit was not maintainable because the plaintiffs had accepted the rents subsequent to the death of the husbands of plaintiffs 1 and 2 which amounted to an acquiescence. Several issues were framed on those pleadings viz.,

(3.) It is also contended and fairly conceded by the learned advocate for the appellants that since the claim of the appellants being based on lease, they cannot prescribe for any greater period than what he claimed viz., for the duration of the period of the lease. He is also supported in this contention by a decision of the Madras High Court in Narsaya Udpa v. Venkataramana Bhatta, 23 Mad LJ 260, Sundara Aiyer and Sadasiva Aiyar, JJ. held that Articles 142 and 144 of the Limitation Act are applicable to cases of prescription of limited interests as mortgagee or permanent lessee. The lease not being a lease from year to year, the appellants could only prescribe for the period stipulated therein. The appellants state that they have no intention of continuing in possession beyond the period of the lease.