TENKASI SULAIMAN ROWTHER Vs. DAWOOD KHAN SAHIB

JUDGEMENT

(1.) The main point argued in this case relates to the question of limitation. The plaintiff claimed title; to the property alleging that it was being held by the defendants as his tenants. The defendants denied the title of the plaintiff and also the tenancy alleged by him and they set up a title in themselves and also said that the plaintiff's suit is barred by limitation and adverse possession. Both the lower Courts found that the title of the plaintiff was established, that the specific tenancy alleged was not proved, and that the defendants did not succeed in proving adverse possession. They came to the conclusion that the defendants were, in possession of the property permissively and so gave a decree in favour of the plaintiff. The conclusion of the appellate Court on this point may be thus stated in its own words. After dealing with the question of limitation and adverse possession the learned Judge observes: It is for the tenants to show that they have-been enjoying the property in their own right. Having regard to the fact that the defendants have not proved any title to the property in themselves and to the evidence that at the time, of delivery they were all tenants in those huts, and took time to vacate from the plaintiff consenting to pay rent to him, it cannot be said that, they acquired any right by adverse possession. I agree with the District Munsif in finding that, their occupation was permissive and as tenants, of the plaintiff. I find the points accordingly.

(2.) This question is dealt with by the learned District Munsif in para. 37 of his judgment. It is argued that the tenancy set up having been found against, the plaintiff must prove possession within 12 years before suit; that that has not been proved in this case and that the findings of the lower Courts that the defendants are in permissive occupation of the property is based upon anew case which was not raised in the plaint or in the issues and that therefore, before the-conclusion of the lower Courts is accepted a finding should be called for on the question of permissive occupation. No doubt there is no issue on the question of permissive occupation, but the question has been raised whether the suit is barred by limitation and adverse possession and evidence has been given that the defendants were in permissive occupation. So it cannot be said that the parties were taken by surprise and on that ground the finding of the lower Court cannot be questioned in second appeal. If the findings now given by the lower Courts are accepted the case falls exactly within Abdul Gani V/s. Mt. Babni (1903) 25 All. 256 and that decision would be sufficient answer to all the arguments of the learned Counsel for the appellant.

(3.) It appears to me that in cases of this description where title is alleged by the plaintiff and a specific tenancy is also alleged by him and it is found that the tenancy is not proved, then with respect to the question of limitation, according to the decision of this Court, the proper article to be applied is Art. 144. There is ample authority in support of this position : Govinda Ramanuja Peria Jeeyangar Swami V/s. Mahomed Esoof Sahib 1925 Mad. 834 and a decision by a Bench of this Court in Ramanujachariar V/s. Sundarachariar 1927 Mad. 287. If the defendants are not able to prove adverse possession under Art. 144 then the plaintiff must get a decree for possession though the tenancy alleged by him has been found against. Article 142 applies to cases of continuance and discontinuance of possession. There is no allegation of continuance or discontinuance of possession in this case, and it has been found concurrently by both the lower Courts that adverse possession has not been proved. The circumstances of this case are somewhat peculiar. The defendants themselves admit that they came in as tenants after the delivery and later on they developed a case of adverse possession. This aspect of the case is mentioned in the finding of the appellate Court. So even though the specific tenancy alleged has been found against, the possession of the tenants is permissive and it is for them to prove adverse possession if they wish to succeed. As I have said the proper article to be applied is Art. 144 and applying that article the lower Court's decision has to be accepted as correct.