SIDRAM LACHMAYA Vs. MALLAYA LINGAYA CHILAKA

JUDGEMENT

(1.) Two questions have been referred to this full bench by my brother sen and Bavdekar JJ., and the two questions are : (1) Whether the possession of a tenant is adverse to the landlord upon the expiration of the tenancy merely because the tenant has not paid rent ? (2) Whether to a suit based upon title by a landlord against his ex-tenant Art. 139 is the article which applies, or Art. 1441

(2.) For the purpose of disposing of these two questions it is sufficient to state just two facts. The plaintiff filed the suit among other reliefs for a relief that he was the owner of the property with which we are concerned in this Full Bench. He was the tenant of the defendant and that tenancy terminated on June 11, 1925, and the suit was filed on July 7, 1938. The plaintiff's contention, with which we are now concerned, was that the title of his landlord had become extinguished under Section 28 of the Indian Limtation Act, that a new title was created in him and therefore he was entitled to the declaration which he sought in the suit.

(3.) The question that arises for determination is which is the article which would govern a suit which the defendant might file against the plaintiff to enforce his right and recover possession, because under Section 28 of the Indian Limitation Act, at the determination of the period limited by the Indian Limitation Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Therefore, the question is what is the period laid down in the Indian Limitation Act for instituting a suit for possession as far as the defendant is concerned, because it is on the determination of the period that his right to recover the property would be extinguished and on the extinguishment of that right a new title would be created in the plaintiff which he could assert and in respect of which he could obtain a declaration from the Court.