MOHAMAD YUSUF Vs. MOHAMAD WAHEED

JUDGEMENT

(1.) During the course of argument in this case I changed my mind from time to time on the various subjects which arose, more particularly on the question of whether Art. 142 or 144, Lira. Act, would apply to this action assuming that the question of limitation was the proper question to be decided in the case. But it seems to me quite clear that having regard to the observations of their Lordships of the Privy Council in Chhatra Kumari Devi V/s. Mohan Bikram Shah 1931 PC 196, Art. 144 only properly applies to a case in which the defendant is holding adversely to the plaintiff with out title, and their Lordships in that case went on to point out that the defendant there had claimed title in various ways and therefore Art. 142 applied and not Art. 144.

(2.) Mr. Khurshed Husnain appearing on behalf of the defendant-appellants presses me with the contention that the effect of the judgment of the learned Judge in the Court below has been to turn a case of one class into another and therefore to that extent he has been taken by surprise The action was by the plaintiff who claimed to be the landlord of the defendants, and his action was based on the allegation that he had served the defendants with a notice to quit, that the defendants had not gone out and he therefore claimed to eject the defendants. Now the Judge in the Court below, although differing from the decision of the Judge of the trial Court, has confirmed the trial Court's judgment ejecting the defendants. The trial Court had given the plaintiff a decree accepting the contention which the plaintiff had made and to which I have referred. That Court was satisfied that the plaintiff had made out his title, that the defendants had made out no title and that they were merely the tenants of the plaintiff. The appellate Court held that the plaintiff had made out his title, the defendants had made out no title, but that they were not the tenants of the landlord. It was then proposing to give a decree for possession, and in order to come to a conclusion on that matter the learned District Judge entered into the question of limitation. Now if the matter had rested there no possible argument could have been advanced, because the learned Judge quite distinctly holds that the onus was on the plaintiff and then comes to a certain conclusion as to whether the plaintiff was in possession within twelve years.

(3.) Mr. Khurshed Husnain on behalf of the defendant-appellant contends that this question should not have been gone into; that once the allegation that the relationship of landlord and tenant had existed had been negatived, the plaintiff's case should have been dismissed. Reliance for that proposition is placed upon the case of Narayan Jha V/s. Jogni Prasad 1934 Pat 184, the decision of a Special Bench, where the learned Chief Justice in delivering judgment relied upon a decision of the Calcutta High Court in Govinda Kumar V/s. Mohini Mohan 1930 Cal 42, where the following statement appears: On the other hand if the question of title were raised by the defendant and if it were found as a fact that there was no contract of tenancy the proper course would be to dismiss the suit and not to convert it into a declaratory and possessory suit which was of another nature entirely.