MOTI LAL PAL CHOUDHURY IN HIS OWN RIGHT AND AS EXECUTOR ANDADMINISTRATOR TO THE ESTATE OF LATE MAHIMA CHANDRA PAL CHOUDHURY Vs. CHANDRA COOMAR SEN AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES SATYA PROSUNNA SEN SARCAR; CHITTARANJAN SEN

JUDGEMENT

(1.) These are appeals by the defendants in two suits for recovery of possession of land. The same tract is in dispute in both the suits; but the subject-matters are different shares making up the entirety in the aggregate.

(2.) On the 3rd March 1897 a lease of the disputed land was granted, containing a provision to the following effect: "you will enjoy the lands of this jama from generation to generation by using it for the purpose of your own residence or for the residence of your own people, if necessary, without in any way altering the character of the lands and by keeping the boundaries intact, and without having the power of making gifts or any sort of alienation. If you or your hairs alienate it, we and our heirs will be entitled to recover khas possession; any objection to the same will be rejected by the Court." In contravention of this covenant, the land we sold by the lessees to the defendants on the 27th October 1900. One of the present suits was instituted on the 8th October 1312 the other was instituted on the 12th November 1912. This latter suit was instituted in a Court which had no jurisdiction to entertain it, with the result that the plaint was returned to the plaintiffs and was re filed in a competent Court on the 6th September 1913. We may take it, however, in view of the provisions of Section 14 of the Indian Limitation Act, that, for the par. poses of the question of limitation raised before us, the suit may be treated as instituted on the 12th November 1912. The Courts below have decreed the suits.

(3.) On the present appeals, those decrees have been assailed on the ground that there was no forfeiture of the tenancy, on the basis of which the lessors could maintain these actions, as they had not complied with the requirements of Clause (g) of Section 111 of the Transfer of Property Act. It has further been argued that, assuming there was a forfeiture, the suit which was instituted on the 12th November 1912 is barred by limitation, and that, if this contention prevails, the "other suit should be dismissed as not maintain-able. We are of opinion that these contentions are well founded and must prevail. As regards the question of limitation which arises in one of the snits only, it is plain that the provision of the Limitation Act applicable is Article 143, which requires that a suit for possession of immoveable property when the plaintiff has become entitled by Reason of any forfeiture or breach of condition, must be instituted within twelve years from the date when the forfeiture is incurred or the condition is broken. The plain language of this provision shows that it is applicable to the case before us. Here the plaintiffs sued to recover possession on the ground that they became entitled to recover possession under the terms of the contract of tenancy by reason of breach of the condition against alienation. This view is supported by the decision in Goohi Sheikh v. (sic) 11 C.W.N. 66. Reliance, however, has been planed on behalf of the respondents upon the decision in Bhairab Charan Naskar v. Kadam Bewa 22 Ind. Cas. 28 : 18 C.L.J. 563 which is clearly distinguishable. In that case, Article 144 was applied, on the ground that at the date of the institution of the suit, the defendants had ceased to be tenants, inasmuch as, from the date of the written statement in a previous suit in which they had denied the title of the landlord, they had forfeited their tenancy and had held adversely to him. In these circumstances, it was held that Article 144 and not 143 was applicable. This is manifestly of no assistance to the plaintiffs in the case before us. It has further been argued on their behalf that time ought to run against them not from the date of alienation but from the date when the lessees surrendered possession to their transferees. We are of opinion that there is no foundation for this contention which is contrary to the provisions of Article 143. We must accordingly hold that the suit, which was instituted on the 12th November 1912 is barred by limitation. If that suit is barred by limitation, it is plain that the other suit which had been instituted earlier and was not barred by limitation is not maintainable, on the ground that a suit for ejectment does not lie in respect of a portion of the lands of a tenancy which has been forfeited or a condition whereof has been broken. This view is supported by a long series of decisions in this Court mentioned in the case of Gopal Ram Mohuri v. Dhakeswar Pershad Narain Singh 35 C. 807 : 7 C.L.J. 483 although we do not overlook that a contrary view has been taken in Madras in the case of Ahmad Sahib Shuttari v. Magnesite Syndicate Limited 32 Ind. Cas. 512 : 39 M. 1049, From this point of view, both the suits are liable to be dismissed.