SUBRAVETI RAMIAH Vs. GUNDALA RAMANNI

JUDGEMENT

(1.) The question in this case is whether Art. 139 or Articles 144 of the Limitation Act applies Kondanna the father of defendants Nos. 3 and 4 was a lessee under Exhibit A which was a lease for a term certain. It is found by the District Judge that the lease was determined about the year 1891. It appears Kondanna died some time afterwards. It is not found exactly when. But he was succeeded by his sons in the possession of the property. The District Judge does not find adverse possession for 12 years to bar the suit. The tenancy having determined in 1891, if Art. 139 is applicable the suit is clearly barred. The appellant argues that the suit is not one to recover possession from a tenant. It is urged that although Kondanna was a tenant and a suit against him after the determination of the tenancy might be described as a suit against a tenant on account of his former tenancy, the suit against the sons cannot be described as one to recover possession from a tenant for they were not tenants at any time. Reliance is placed on Vadapalle Narasimha V/s. Dronamaraju Seetharama Moorthy 31 M. 163 at p. 167; 3 M.L.T. 256; 18 M.L.J. 26. It is there stated "the representatives of a tenant by sufferance who enter after his death cannot, in our opinion, be said to have ever been tenants within the meaning of Art. 139, and a suit against them would appear to fall within Art. 144." With great respect we find ourselves unable to accept this reasoning. Kondanna remained in possession after the expiry of the term. The tenancy was determined within the meaning of Art. 139, for under Section 111 of the Transfer of Property Act, "a lease of immovable property is determined by efflux of the time limited thereby." Time began to run, therefore, in Kondanna's favour. He is succeeded by his sons in the possession of the property. They are entitled to tack on the time of their father's possession after. the determination of the tenancy to the period of their own possession. The time that had begun to run in favour of their father continues to run in favour of the sons. it seems to us, therefore, difficult to hold that Article 139, which would be applicable to the suit against Kondanna, ceases to be applicable because Kondanna is succeeded by his sons in the possession; of the property. Suppose, for example, Kondanna was alive and in possession for 12 years after the termination of the tenancy, and he having died subsequently the suit is brought against the sons. Can it be then contended that Art. 139 becomes inapplicable? It seems to us that the article should be read as if it ran by a landlord to recover possession from a tenant or his representative in interest." Such a reading of the language of the Act would appear to be necessary in the case of other articles as well to give effect to the intention of the Legislature. See for examples Articles 78, 81 and 82. The Calcutta High Court in Madan Mohun Gossain V/s. Kamar Rumeswar Malta 7 C.L.J. 615 at p. 626 has adopted the same view. Kondanna, it is said is a tenant by sufferance, and his possession is under the common law not adverse, while his representatives are trespassers.

(2.) It seems doubtful whether the fiction of a tenancy by sufferance should be kept up after the Transfer of Property Act, according to which a lease is determined by efflux of the time limited thereby (see Section 111). Such a tenancy does not operate in England to interrupt the running of time see Day v. Day (1870-71) L.R. 3 P.C. 751 at p. 761. Nor, under Art. 139, is it of any avail to the landlord. Whether for the purposes of Art. 144 a distinction should be made between Kondanna and his sons appears to us to be doubtful. But, however, this may be, there seems to us to be nothing wrong in holding that if the plaintiff would be barred against Kondanna if now alive, he would be like wise barred against his sons.

(3.) The second appeal is dismissed with costs.