AMBALAM Vs. VRMPERIA KARUPPAN CHETTI

JUDGEMENT

(1.) In 1889 there was a mortgage of the melwaram interest in certain land and a lease back to the mortgagors under a lease deed for a term of fousr years. The interests of the mortgagee have now devolved upon plaintiff and defendants 6 to 8, and these of the mortgagors upon defendants 1 to 5. Plaintiff sued for the recovery of the mortgage money and for profits for faslis 1328 to 1330 (1918-21). None of the defendants except defendant 3 had been paying any rent, and as against defendants 1, 2, 4 and 5 both plaintiff's claims! were held to be barred by limitation in; both the Court of first instance and lower appellate Court. In second appeal however Madhavan Nair, J., held that the claim for profits was not barred and defendants 1, 2, 4 and 5 have accordingly filed their Letters Patent Appeal.

(2.) In coming to this decision Madhavan Nair, J., relied upon Art. 131, Lim. Act!,; which lays down that a suit to establish a periodically recurring right is noil barred until 12 years after the plaintiff is first refused the enjoyment of the right. No doubt if this article could be applied in isolation to the facts of this-case this decision would be correct, but it is argued in this appeal, and we think rightly, that Art. 139 and Section 28 of the Act must also be considered, and that all plaintiff's rights as landlord are nail. extinguished. Art. 139 allows 12 yeara to a landlord to sue for possession of his land from his tenant from the date of the determination of the tenancy, la this case the tenancy was admittedly determined in 1893. No doubt plainfiff did not actually frame his suit as one to recover possession, but in view of the provisions of Section 28, Art. 139 cannot merely for that reason be ignored. Section 21 runs as follows: At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

(3.) It is argued for the respondent here that all that that section means is is that respondent's right to recover possession is extinguished and his right to three years arrears of rent is not affected, but if that interpretation be correct, the section seems to be redundant, for that is merely repeating the terms of Art. 139. Nor can any author-sty be shown in favour of respondent's interpretation. No doubt Madhavan Nair, J., relied in second appeal upon Alubi v. Kunhi Bi (1887) 10 Mad 115 and Jagannath Pandiajiar V/s. Muthiah Pillai (1904) 14 MLJ 477 and we have also been referred to Vittal Bava V/s. Narayan Daji (1894) 18 Bom 507; but in all these three cases the suits were instituted by melwaramdars against their kudivaramdars who had a permanent right of occupancy. Their tenancy could not therefore be determined and the question of the application of Art. 139 could not arise.