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IN THE HIGH COURT OF BOMBAY
C.S.Dharmadhikari, J.
Appellants: Madhao Pandurang and Anr.
Vs.
Respondent: Yeshwant
Second Appeal No. 379 of 1964Decided On: 16.03.1973
Counsels:
For Appellant/Petitioner/Plaintiff: V.R. Manohar, Adv.
For Respondents/Defendant: K.G. Chendke and V.R. Deopujari, Advs.
LIMITATION ACT, 1908 - SECTION 142, 144 - SUIT FOR POSSESSION OF IMMOVABLE PROPERTY - DISCONTINUANCE OF POSSESSION - ADMISSION OF DEFENDANT - INTERPRETATION OF STATUTES - SUBSEQUENT LEGISLATION.
Fact of the Case:
Plaintiffs filed a suit for possession of the suit house on the basis of title and also for recovery of Rs. 540/- on account of mesne profits for use and occupation of the said house by the defendant. The defendant denied the title of the plaintiffs. He contended that there was no relationship of the landlords and tenant between the plaintiffs and himself. Though the defence of limitation was not taken in specific terms, it was stated that the defendant and his father have been continuously in possession of the premises since before 25 years of the date of the suit.
Finding of the Court:
The court held that Article 142 of the Limitation Act, 1908 will not apply to the present suit. Once it is held that Article 142 will not apply to the instant suit, the only other Article which could apply to such a suit is Article 144 of the limitation Act.
Issues: Whether Article 142 or Article 144 of the Limitation Act will apply to the facts of the case.
Ratio Decidendi: The court observed that the term "discontinuance" used in Article 142 of the Limitation Act, 1908 will imply a voluntary act and abandonment of possession followed by the actual possession of another. It necessarily implies that a person who has discontinued the possession has given up the property and has left it to be possessed by anyone who chooses to come in. For this there must be an intention to abandon title before there can be said to be discontinuance in possession. Such a discontinuance cannot be assumed, but it must either be admitted or proved.
Final Decision: The court allowed the appeal filed by the plaintiff and set aside the judgment and decree passed by the Second Extra Assistant Judge. The court restored the judgment and decree passed by the Sixth Joint Civil Judge, Junior Division Nagpur in Regular Civil Suit No.838 of 1961.
2. The plaintiffs filed a suit for possession of the suit house on the basis of title and also for recovery of Rs. 540/- on account of mesne profits for use and occupation of the said house by the defendant. It was contended by the plaintiff that the house bearing number 1326/0-3 situated in Circule No. 21, Balaji Mandir Road, Itwari, Nagpur, originally belonged to one Narayan Paikaji Gurao of Nagpur. After his death it was inherited by his wife Gaurabai. She sold this house to one Mannulal in the year 1925. Since then Mannulal continued to be in possession of the said house in his own right and got the same constructed at his own costs in the year 1936. As it was thought necessary that Maina, sister of Narayan, should also give her consent to the said transfer such a consent deed was obtained on the 4th October, 1925 by which she purported to give up her right in respect of the property. Mannulal contined in possession till 20-11-1958 on which date he shold the suit house to the present plaintiffs. As that time the defendant was in possession of the suit house either with the consent of Gaurarabi or as her tenant. The plaintiffs after the purchase of the house filed an application before the Rent Controller for permission to terminate the tenancy of the defendant. After getting the necessary permission, the plaintiffs filed a suit in the Court of the Civil Judge, Senior Division, which was registered as Civil Suit No. 1014-A of 1959. This suit was dismissed on 25-6-1960. The question as to whether the defendant was a tenant of Mannulal or otherwise was the subject-matter of the decision of that suit. In that suit it was held that the plea of tenancy was not established. An appeal filed against the said decision of the Civil Judge, bearing Civil Appeal No. 128-A of 1960, was also dismissed. After the decision in that appeal the present suit was filed by the plaintiffs on the basis of their title, on 7th December, 1961. In the present suit the plaintiffs have contended that the defendant was in possession even before his vendors sale-deed of the year 1925 and at any rate from 1942. It was thereafter contended that the defendant had paid the rent to Mannulal upto the end of June 1958 and also for July, 1958. A reference was also made to a declaration given by the defendant to the Nagpur Municipal Corporation to the effect that the he was the tenant of the house and this declaration was given on 27-4-1952.
3. The defendant denied the title of the plaintiffs. He contended that there was no relationship of the landlords and tenant between the plaintiffs and himself. Though the defence of limitation was not taken in specific terms, it was stated that the defendant and his father have been continuously in possession of the premises since before 25 years of the date of the suit. In effect, therefore, right on the basils of adverse possession was claimed. This was also construed to be a plea on the ground of limitation.
4. The trial Court after framing necessary issues came to the conclusion that the plaintiffs have proved their title to the suit house, and therefore, decreed the claim of the plaintiffs.
5. Against this judgment and decree an appeal was filed which was heard and decided by the Second Extra Assistant Judge, Nagpur, in his judgment referred to above. The learned Second Extra Assistant Judge held that the present suit filed by the plaintiff is governed by Article 142 of the Limitation Act, 1908 and that neither the plaintiffs nor Mannulal were in possession of the suit house at any time 12 years next before the suit, and therefore, the suit was barred by limitation. In this view of the matter, the appeal was allowed and the plaintiffs suit was di
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