DADOO Vs. SUKHA

JUDGEMENT

(1.) THE first point raised on (behalf of the plaintiffs appellants is that, although the remedy by way of suit by them is lost having regard to Article 1, Schedule 2, Tenancy Act, there was no forfeiture or extinction of the tenant's right incurred by them. For this view, authority has been quoted in the shape of the judgment of Kinkhede, A.J.C., in Banan v. Ranjit Singh A.I.R. 1926 Nag. 99. I have already, in my judgment in Kapoor v. Nanhi A.I.R. 1928 Nag. 280, seen reason to disagree from that decision. I may further point out that, as regards the present case, Section 28, Lim. Act, does apply in view of the provision contained in Section 104, Sub-section (4), Tenancy Act of 1920. I am in full agreement with the decision in Dalip Rai v. Deoki Rai [1899] 21 All. 204, that the tenancy right was extinguished with the loss of the remedial right to recover possession.

(2.) A further suggestion has been made that the land should have been held to be in possession of the plaintiff-appellants from 1922 to 1926. I am wholly unable to find any sound basis for this contention. The perfectly proper finding of fact arrived at by the lower appellate Court is that the original tenants have not been in possession since at least 1921-22 and it irrevocably follows therefrom that Section 104, Tenancy Act, combined with Article 1, Schedule 2, thereto is a bar to the present suit. In any event, the lower appellate Court, after a careful consideration of the evidence, has held that the defendant-respondent was in possession from 1922 onwards, and it has further held that the plaintiffs' allegation that they were dispossessed on 30th August 1925 was incorrect.