B SURAJ PATISH NANDAN LAL Vs. MTATUL BIBI

JUDGEMENT

(1.) THIS is a second apneal by a plaintiff whose suit has been dismissed by both the lower Courts. The facts are that on 9 October 1918 one Muhammad Khan, the deceased husband of defendant 1, executed a perpetual lease in favour of the plaintiff of certain plots of sir which were in his possession as a zammdat. Two days later on 11 October 1918 Muhammad Khan executed a mortgage of his zamindari share in this khewafl with possession to one Brij Pat lush, who was a cousin, of the plaintiff and who was held by the trial Court to be joint with the plaintiff. The possession of the sir was never transferred by Muhammad Khan. The mortgage in question was later redeemed by a subsequent mortgagee. The plaintiff has brought a suit for possession, under this lease on 27 June 1930. almost within 12 years of the execution of the lease. The finding of the Courts below is that the plaintiff has never been in possession. The Courts below have held that the suit for possession is barred by Art. 113, Schedule 1, Limitation Act. The sole argument on behalf of the plaintiff in second appeal is that the correct article to apply is Art. 144, and that his suit should be treated as a mere suit for possession, and learned Counsel argues that the contract for the lease having once been executed it ceased to be fin, executory contract and became an executed contract, and therefore there is no contract for which specific performance should be carried out. His argument is that Art. 113, Limitation Act, would apply to a suit for specific performance of a contract to make a lease, but once the lease has been made Art. 113 did not apply, that the rights have arisen from, the. lease and that the correct article to apply is Art. 144, for which a period of limitation is 12 years, and therefore, the suit is within time. Unfortunately forlearned Counsel he is not able to produce any ruling of any High Court in India in) which this view of a lease has been taken. He relied on Gulam Sabir V/s. Narain Prasad (1908) 5 A.L.J. 534. where the question was what was the; proper court-fee for a lease. The learned Judge who decided that case had shortly before in Charna V/s. Bans Lal (1908) 5 A.L.J. 529 decided a question similar to the present where there was a lease and possession had not been given to the lessee and the lessee brought a suit for possession. On that occasion the Bench held that the correct article to apply was Art. 113 and not Art. 144. Learned Counsel has not attempted to distinguish this ruling from the present case. Another ruling of the Allahabad High Court is reported in Muhi-ud-din Ahmad Khan V/s. Majils Rai (1884) 6 All. 231. In that case there was a contract for the sale of certain immovable property in the event of the vendor obtaining a decree establishing his title to the property in a suitj which had been, brought for that purpose. The vendor obtained a decree establishing his title. The purchaser brought a suit to have a sale deed executed and completed and for possession of the property. The Court held that Art. 113 applied and not Art. 144. Learned counsel attempted to distinguish that case by saying that that case only applied to an agreement to sell and that the case would have been different if it had been a sale deed. I do not consider that the ruling draws any such distinction. It appears to me that under Section 105, T.P. Act, a lease is defined as a, transfer of a right to enjoy immovable property. The plaintiff claims that this contract had been made with him but that the right to enjoy has not been transferred to him. by possession, and he asks that the contract, to be put in possession of the property should be carried out. I consider that this is a suit for specific performance of a contract. Learned Counsel relied on Ferguson V/s. Uma Chand Boid (1906) 33 Cal. 343 at p. 347, but that was, not a case in regard to limitation. In Kalka Singh V/s. Himayat Ali (1907) 10 O.C. 218 there was a ruling by Chamier, J. that a suit for possession by enforcement of a clause in a mortgage deed that the mortgagee had a right, to possession on failure to pay interest was not a suit for specific performance If a contract. That however dealt with the specific case of a mortgage and in my opinion cannot be applied to the present case which deals with a lease. In. Ranjit Singh Bahadur V/s. Maharaj Bahadur Singh 1918 P.C. 85 their Lordships held that the grant in question in that case although it had been declared to be a contract within the meaning of Section 51 of Bengal Act 6 of 1870 did not create rights contractual in the sense that the contract by its terms creates or regulates the personal obligations and duties of the granter in the circumstances that had arisen which were not contemplated and necessarily not referred to at the time the grants were made. THIS case dealt with certain, chaukidari chakaran lands in villages and the interpretation of a grant of such lands. That has nothing to do with the circumstances of the present case. In Mogera Nandi V/s. Parameswara Udpa (1908) 31 Mad. 51 there was a peculiar kind of tenure called an Arthamulgeni deed which was distinguished by the Court from a lease. That was not a case of a suit based on contract. As already stated learned Counsel has not shown a single ruling in which plaintiff sued for possession under a lease under which it had been held that he had never been in possession and where the Court held that Art. 113 of the Limitation Act did not apply. For these reasons dismiss this second appeal with costs. Permission is given for a Letters Patent appeal.