Judgment

OZA, J.:- This appeal on special leave has been filed by the appellant against the judgment and decree passed by Rajasthan High Court in Civil Second Appeal No. 267/81* wherein the concurrent judgment of the two Courts below was maintained.

* Reported in 1986 Rajasthan L. R. 362.

2. Brief facts material for disposal of this appeal are that the respondent-plaintiff purchased a plot of land No. A-11 measuring 50 X 90 in Rambabu-Ka-Aahata situated a Station Road, Jaipur which is now known a Sen Colony. After the death of Rambabu Sen, his son K. K. Sen became the owner of colony, the land was divided into plots and the scheme was approved by the Municipal Council.

3. Father of the present appellants, Sultan and plaintiffs were living in Rambabu-Ka-Aahata as tenants. Late Johari took on rent a piece of land from K. K. Sen and executed a rent note on 23-1-1949. This rent note came into force from 1-1-1949 and was registered on 18-2-1949. Shri K. K. Sen executed a registered sale deed dated 15-4-1957 in favour of the plaintiffs respondents. Consequently the appellants became the tenants of the respondents from 15-4-1957. The plaintiffs respondents wanted to build a house for themselves on this disputed land but the present appellants claimed to be the owners of the land. Consequently the respondents filed a suit for permanent injunction against the present appellants which was subsequently withdrawn on 6-7-1967 and the present suit for declaration of title of the respondents as the owners of plot No. A-11 in the Sen Colony and for possession of such portion of this plot which was in occupation of the defendants appellants and the rent and damages was filed. The present appellants in their written statement asserted that they were not the tenants of K. K. Sen or any other person and K. K. Sen had no right to sell the plot and also claimed adverse possession for more than 12 years and therefore sought the dismissal of the suit filed by the respondent-landlord.

4. Learned trial Court framed a number of issues and after recording the evidence of both the parties decreed the suit of the respondents-plaintiffs holding that they were the tenants of K. K. Sen and decree for possession and rent was passed in favour of the respondents. The present appellants preferred an appeal in the Court of Additional District Judge No. 1, Jaipur City who after hearing the parties also confirmed the decree passed by the trial Court and dismissed the appeal filed by the appellants. Thereafter the appellants filed a second appeal before the High Court and by the impugned judgment the High Court dismissed this appeal and it is thus that the present appeal is before us.

5. The questions which were raised before the High Court were in respect of lease executed by the appellants and the right of the respondent-land lord to seek the relief as prayed in the present suit. The learned Judge of the High Court went into evidence and referring to the statement of Sultan, the present appellant found that he himself admitted that he was a tenant in Plot No. 10-11 and even Johari father of Sultan in his statement admitted that, he was a tenant of K. K. Sen in Plot No. 10-11 and after considering all these facts, the learned High Court came to the conclusion that although the appellants were in possession of some portion of the land which did not form the part of the lease in their favour but in view of S. 108, T.P. Act, it will not make much difference and the plaintiffs-respondents were therefore held entitled to a decree for possession. The learned Judge therefore came to the conclusion that in view of the fact that they were tenants of K. K. Sen, they cannot claim title on the basis of adverse possession merely because they encroached upon a portion of land while they were tenants of K. K. Sen and on this ground the appeal filed by the appellants was dismissed.

6. In the special leave petition filed in this Court, four grounds were urged. It was contended that in a s