SHRAVAN SHAHASING PATIL Vs. FATTU VALAD SAYDU MUSALMAN

JUDGEMENT

(1.) There are two points in this second appeal. The first one is a point of procedure, namely, that the plaintiff ought not to have been allowed to make a case of adverse possession, seeing that it was not pleaded, nor was there any express issue about it. But it is clear that the point was expressly raised and argued in the trial Court, and, so far as we can see, without objection. No objection was taken to it in the memorandum of appeal to the lower appellate Court. The point was again argued there apparently without any objection. So, too, in the memorandum of appeal to us there is no point taken that it was not permissible to the plaintiff to raise the point of adverse possession. We are, accordingly, of opinion that the defendant- appellants have suffered no hardship in this respect, and that it is too late now to raise this particular point.

(2.) The next point relied upon by the appellants is one of law, namely, that it is not shown that the plaintiff obtained a title by adverse possession within the meaning of Art. 144 of the Limitation Act, They point out, and we think correctly, that Art. 139 technically does not apply because this is not a suit by a landlord to recover possession from the tenant, but is a suit by an ex-tenant to recover possession of the land.

(3.) Now, on the facts it is clear that for a large number of years one Shammahomed, who had been granted a rent-note in 1888, Exhibit 97, was in possession of the land after the expiration of that rent-note, and that he paid no rent for the land, It is argued by the appellants that mere non-payment of rent under such circumstances does not amount to adverse possession. Certain authorities in Gangabai V/s. Kalapa Dari Mukrya (1835) I.L.R. 9 Bom. 419, Prasanna Kumar Mookerjee V/s. Srikantha Rout (1912) I.L.R. 40 Cal. 173, and Archbold V/s. Scully (1861) 9 H. L. C. 360, 365, are relied upon in support of that contention.