SANGAM LAL Vs. GANGA DIN

JUDGEMENT

(1.) The suit out of which this second appeal has arisen was brought on 19th October 1940, by the appellant in the Court of the Munsif Haveli, Cawnpore, for possession of a house situated in the City of Cawnpore and for certain other reliefs which need not be mentioned. The trial Court decreed the suit, but the lower appellate Court dismissed it on the ground that it was barred by time under Article 142, Limitation Act. The main allegations made by the plaintiff in the plaint were that he was the owner of the house; that he had let it out to defendants 10 or 11 years before the institution of the suit on a monthly rental of Rs. 10; that the defendants had not paid any rent since 1 June 1939; that the plaintiff had brought a Suit No. 652 of 1939 in the Munsif's Court against the defendants, alleging that they were his tenants and praying for their ejectment, and that the defendants had alleged in their written statement filed in that suit that the plaintiff was not the owner of the house but that, as a matter of fact, the defendants were the owners and that there had never been any contract of tenancy between the parties. The plaintiff claimed that he was entitled to be put in possession of the house. Besides raising other pleas, the defendants alleged that they were the owners of the house; that the plaintiff was not its owner; that they had never been the plaintiff's tenants and that the plaintiff was not entitled to eject them. It was also pleaded that the plaintiff had never been in possession of the house in dispute within 12 years prior to the institution of the suit and that it was, therefore, barred under Art. 142, Limitation Act. The defendants further alleged that, as a matter of fact, they had been in adverse possession of the house in dispute for over 12 years.

(2.) Both Courts below held that the plaintiff had succeeded in proving his title to the house. They also held that the defendants had been in uninterrupted possession of the house since 1918 and that the plaintiff's allegation that the defendants had ever paid rent to him was false. They further held as they were bound to do in view of the decision inter partes in Suit No. 652 of 1939 that the plaintiff's allegation that the house had been let out by him or by his father to the defendants and that the latter had been his tenants was not true. The Munsif held that these findings of fact were not sufficient to attract Art. 142, Limitation Act, that it was-for the defendants to establish their adverse possession and that they had failed to do so. The view taken by the Munsif was that, there being no allegation in the plaint of the plaintiff having been dispossessed or having discontinued his possession while he was in possession of the property in suit, Art. 142 could not apply. He accordingly, as has already been stated, decreed the suit. The learned Judge of the lower appellate Court agreed with the findings of fact recorded by the Munsif but held that on those findings the suit must be held to be barred by time under Art. 142. We shall assume that the finding arrived at by the Courts below on the question of title is a satisfactory finding and is binding on this Court in second appeal, and shall confine ourselves to the question whether the view taken by the lower appellate Court on the question of limitation is correct.

(3.) Having heard learned Counsel for the plaintiff-appellant at considerable length, we have no hesitation in coming to the conclusion that the learned Judge of the lower appellate Court was right in holding that, on the findings of fact arrived at by the Munsif and affirmed by the learned Judge, the Art. of the Limitation Act which was applicable to the case was Art. 142 and that the suit was barred. The Munsif appears to have been under the impression that Article 142 can be applied only in those cases where the plaintiff alleges in so many words in the plaint that he has been dispossessed by the defendant. As has been pointed out by the Full Bench in Bindyachal Chand V/s. Ram Gharib Chand , a plaintiff cannot by cleverly drafting his plaint evade the burden of proof which Art. 142 casts upon a person who is suing for possession on the ground of dispossession. As a matter of fact, the allegations made in the plaint in the present case do amount to an allegation that the plaintiff has been dispossessed while in possession of the property in dispute. The allegation that the defendants had been in occupation of the house as the plaintiff's tenants amounted to an allegation that the plaintiff was in possession of the house through his tenants. The allegation that the defendants had not paid any rent since 1 June 1989, amounted to an allegation that the defendants had dispossessed the plaintiff on that date. The allegation that the defendants had falsely asserted in Suit No. 652 of 1939 that they themselves were the owners of the house further strengthened that allegation of dispossession. That being so, the Munsif was clearly wrong in holding that Art. 142 did not apply to the case because the plaintiff had not alleged that he had been dispossessed or had discontinued his possession while he had been in possession of the property. The learned Judge of the lower appellate Court was, in our opinion, right in relying on the judgments pronounced in the Full Bench case in Bindhyachal Chand V/s. Ram Gharib Chand mentioned above, and in holding that in view of the pleadings and the facts found, the Art. of the Limitation Act which was applicable to the case was Art. 142. That being so, the suit was barred by the statute of limitation and the question of the defendants adverse possession did not arise. Art. 144, being a residuary article is not applicable unless it is found that no other article is applicable to the suit. The decree, dismissing the suit, passed by the lower appellate Court must, therefore, be upheld.