SURAJ PATISH NANDAN LAL Vs. MTATUL BIBI

JUDGEMENT

(1.) This is a Letters Patent Appeal by the plaintiff against the decision of a learned single Judge of this Court. On 9 October 1918, one Mohammad Khan, the deceased husband of defendant 1, executed a perpetual lease in favour of the plaintiff of certain plots described by him as sir which were in his possession as zamindar. Two days later, on 11 October 1918, Mohammad Khan executed a mortgage of his zamindari in this khewat with possession to Brij Patish who was a cousin of the plaintiff and who was held by the trial Court to be joint with him. The possession of the sir was never transferred by Mohammad Khan. The mortgage referred to above was later redeemed by a subsequent mortgagee. The plaintiff brought the present suit for possession under his lease on 27 June 1930. The defendants contended that the suit was barred by limitation under Art. 113 of Schedule 1, Lim. Act. The plaintiff's case, on the other hand, was that Art. 144 applied to the suit. Both the lower Courts held that Art. 113, Lim. Act applied and the suit was barred by limitation. This decision was confirmed by the learned single Judge.

(2.) The only question in this case is whether Art. 113, Lim. Act applies to the suit. This Art. applies to a suit for specific performance of a contract and the time from which the period of limitation would run is the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused. Whether Art. 113 applies or not depends upon whether the suit is for specific performance of the contract of lease or for the enforcement of the right which had been acquired by the plaintiff under the lease. Under Section 107, T.P. Act, a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument. All other leases of immovable property may be made either by an instrument or by oral agreement accompanied by delivery of possession. In leases where a lease may be made by an oral agreement accompanied by delivery of possession if possession has not been delivered to the lessee the lease is not effective and there is no demise or transfer, consequently the right to possession is not vested in the lessee. In order to make it effective, it is necessary that the lessee should obtain possession over the property leased. In such a case a suit for possession would be one for specific performance of an agreement to lease. In all other cases where a lease is made by a registered instrument it effects an actual demise and the right to possession becomes vested in the lessee. Section 108, T.P. Act, lays down the rights and liabilities of the lessor and the lessee. One of the rights of the lessee is to obtain and remain in possession over the property leased. This right may be enforced by the lessee as well as by any transferee of his, in whom the lessee's right is vested from time to time.

(3.) If the lessee had no right to enforce his right to obtain and remain in possession which he acquired under the lease, he would have no remedy against a third per. son who happens to be in possession over the leased property and against whom the lessor does not choose to take any action. There can be no doubt that the lessee has a right to bring a suit for ejectment against such third person. In Achayya V/s. Hanumantrayadu (1891) 14 Mad. 269 it was held that the lessee was entitled to maintain a suit for ejectment against the party in possession notwithstanding the fact that at the date of the lease his lessor was not in possession of the property. This case was followed in Mohad Fazihzzaman v. Anwar Husain . There the defendant obtained a lease of a house for a period of ten years. A few months before the expiry of the lease the lessor executed another lease in favour of the plaintiff for u, further period of ten years. The second lease was to take effect a few days after the expiry of the first lease. As the first lessee, whose lease determined by efflux of time under Section 111(a), T.P. Act, was holding over, the second lessee brought a suit for ejectment of the first lessee from the house. It was held: Section 108 provides that the lessor is bound on the lessee's request to put him in possession of the property and further provides that the benefit of; such contract shall be annexed to, and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. There can therefore be no doubt that the lessee is entitled to enforce his right to obtain possession of the land leased to him so that he may enjoy its usufruct. There seems to be no reason why he should not be allowed to enforce his right against another person who is holding under his lessor who is bound to put him in possession. The defendant's lease terminated automatically. A. Bench of the Madras High Court in Achayya V/s. Hanumantrayudu (1891) 14 Mad. 269 came to the same conclusion on general grounds and independently of the express provisions of the Transfer of Property Act.