Judgement

Appeal (No. 81 of 1926) from a decree of the High Court (April 17, 1924) affirming a decree of the first Subordinate Judge of Sylhet.

The suit was brought by the appellant against numerous defendants, the present respondents, claiming possession of plots of land forming part of a zamindari estate. The appellants claim was based on the purchase of a one-seventh share in the estate in 1896 ; he alleged that the lands in suit had been allotted to him in respect of that share ; that the defendants were his tenants and that their tenancies had been determined by notices less than three years from the date of suit.

Both Courts in India held that the relation of landlord and tenant did not exist between the appellant, or his predecessors, and the respondents, or their predecessors; that art. 139 of the Indian Limitation Act, 1908, consequently did not apply, and that the suit was barred by art. 144.

Before closing his case at the hearing the plaintiff sought to put in evidence certain documents, including copies of the judgments in suits brought in 1854 by the then zamindars. These documents had not previously been produced or referred to. The Subordinate Judge refused to give leave under Order xiii., r. 2, admitting them in evidence, and that decision was affirmed on appeal.

1928. Dec. 6, 7, 10. Gavin Simonds K.C. and S. Hyam for the appellant.

De Gruyther K.C. and Parikh for the respondents.

1929. Jan. 22. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is an appeal from a decree of the High Court at Calcutta affirming a decree of the First Subordinate Judge at Sylhet and dismissing the plaintiffs suit, which both Courts held to be barred by limitation.

The plaintiff sued as the owner of a one-seventh share of the permanently settled estate No. 85 of the Collectorate of Sylhet to eject defendants 1 to 160 from 143 holdings in the occupation at the date of the plaint of defendants 1 to 160, as shown in the first schedule to the plaint. Defendant 161 was joined as a purchaser from defendant 148, defendants 162 to 186 as the co-sharers with the plaintiff in the estate, and defendant 187 as vendor to the plaintiffs father in 1896.

The plaint alleged that by an amicable arrangement the lands in schedule 1 had been allotted to a predecessor of the plaintiff in respect of a one-seventh share, which was afterwards acquired by the plaintiffs father in 1896, that they had all along been in the occupation of the defendants 1 to 160 as tenants, that in 1896 these defendants had rendered themselves liable to forfeiture by denying their landlords title, that the plaintiffs father had enforced their forfeiture and determined the tenancies by instituting 120 suits in 1904, which were afterwards withdrawn by leave with liberty to bring a fresh suit, and that the present suit was within time because brought within twelve years of the determination of the tenancies by the institution of the aforesaid suits. There was also a plea that the suit was not barred, because the plaintiff was entitled under s. 14 of the Limitation Act to exclude the time spent in prosecuting the former suits, but this has not been relied on before their Lordships.

Defendants 1 to 160 pleaded, in addition to other defences, that they were not and never had been the tenants of the plaintiff and his predecessors in title, and both the lower Courts, after a very careful examination of the evidence, have found that the plaintiff has failed to prove the alleged tenancies and so to bring the case within art. 139 of the Indian Limitation Act.

This was the only question argued on this appeal, and their Lordships, after carefully considering the evidence before the lower Courts, and the additional evidence which they thought it right to admit in the circumstances hereinafter stated, have arrived at the same conclusion.

The case is a very unusual one, because both the lower Courts have found that the plaintiff has failed to prove any payment of rent to t