TULSIRAM JIYANLAL LODHI Vs. HYDER LALLA PINJARA NAD

JUDGEMENT

(1.) THE questions referred for the opinion of the Pull Bench are:

(2.) THE points referred for decision involve the rights of the landlord, when Section 28, Limitation Act, has extinguished the right of an absolute occupancy tenant to recover his holding on which a trespasser has trespassed for the period of limitation prescribed by Schedule 2, C.P. Tenancy Act, namely, three years. In virtue of Section 104 (4), C.P. Tenancy Act, Section 28, Limitation Act, applies when a suit by a tenant to eject a trespasser would be time-barred. Bose J., considering that on expiry of the period of limitation a voluntary transfer by a tenant within the meaning of Sections 6, 12 and 13 of the Act is brought into existence, would apply the law relating to such voluntary transfers, holding that in so far as the landlord is bound by voluntary transfers, adverse possession against the tenant effects acquisition of the tenancy by the trespasser. The expression "adverse possession" in the reference is so to be understood.

(3.) THE point actually decided in the Punjaram Jagoba v. Ramu Chintoo was that if the trespasser were an heir of the displaced occupancy tenant to whom the occupancy tenant had been entitled to transfer, the trespasser could not be ejected, Niyogi J. basing his decision on the general principles of Section 12(1), C.P. Tenancy Act, and Bose J. applying his conclusion that a transfer by adverse possession was the same, as a voluntary transfer. It seems to us quite clear that it is the effect of Section 28, Limitation Act, between tenant and trespasser on the landlord's rights and remedies that we have to consider, and that no question is raised whether a trespasser can acquire against the landlord tenancy rights by prescription of 12 years.