Badri Khatik vs Narain Singh and Others

Ray, J.—This is a defendant''s second appeal against the judgment of the lower appellate Court, decreeing the plaintiffs'' suit in ejectment against the defendant-appellant. The subject-matter of dispute is a house within the municipal limits of the town of Gaya, and is subject to municipal assessment. The plaintiff started his suit on the allegation that the disputed house, had been acquired by his elder brother, Chhedi Singh, by purchase, and that at the time, the defendant''s father was occupying the house as a tenant on a monthly rent of eight annas. He, however, vacated the house in the year 1339 and thereafter he died. Subsequent to that, the present defendant was introduced into the same house as a tenant in the year 1340 on a monthly rent of Re. 1. The defendant paid the settled rent for about a year or two, and then discontinued doing so, on which the plaintiff served him with a notice to quit on 3rd May 1937.

In reply thereto the defendant set up a title in himself, and, therefore, the plaintiffs brought the suit to eject the defendant, claimed arrears of rent, and damages since the termination of the tenancy, on service of notice to quit. The defendant''s story was that the house in dispute had been built by the defendant''s uncle, Shama Khatik, and the lands, the house site, had been gifted to him by Chulhan Sahu who admittedly was the owner thereof. He further pleaded that the plaintiffs'' suit was barred by limitation, neither they nor their predecessor-in-title having ever been in possession within twelve years of the suit. They also set up a title by adverse possession.

The Munsif, who tried the suit in the first instance, came to a finding that the plaintiffs'' title to the disputed house including the site thereof was well proved. He had framed, on the pleadings before him, an issue as to limitation, which was in these terms: "Is the suit barred by limitation?" Before him, this issue of limitation was not pressed. He, therefore, granted the plaintiffs a decree for ejecting the defendant. He, however, found that the allegation of tenancy in year 1340 at a monthly rent of Re. 1 had not been established.

Therefore, the plaintiffs were not entitled to claim any amount as arrears of rent, but he granted the plaintiffs damages, in lieu thereof, to the extent of us. 50. This judgment of the learned Munsif was appealed from, and the learned lower appellate Court agreed with him on the question of plaintiffs'' title, but it was represented to the lower appellate Court that the issue of limitation had not in fact been abandoned before the learned Munsif. The learned lower appellate Court, at that stage, had come to a clear finding that the plaintiffs had title to the property, and that the defendant''s predecessor-in-interest was the tenant in occupation at some anterior date, but that all the same, he felt that the question of limitation must be decided afresh by the trial Court. He, therefore, remanded the case to the Munsif to come to a decision on this issue and dispose of the suit in accordance with law. The Munsif who tried the suit, after remand, recorded a finding that admittedly the defendant and his predecessor-in-interest having been in occupation for more than 30 or 35 years, and the allegation of tenancy created in the year 1340 not having been proved, and any previous tenancy not having been pleaded, the defendant had acquired a title by adverse possession, and the plaintiffs not having proved a subsisting title, or not having proved that they were in possession within 12 years of the suit, their suit must fail as barred by limitation.

In course of his finding he had said that in the municipal survey, which had taken place in 1918, the plaintiffs were recorded as owners, in respect of the holding and the defendant as an occupier, and that there was a dispute as against this entry raised by the plaintiffs in 1916 before the survey officer who decided that the plain, tiffs had nothing to lose by such a record as-it would not confer on the defendant any-permanent right of occupancy. The learned Munsif remarked, however, that this record was of no help to the plaintiffs in establishing either that there was a tenancy prior to the year 1840 or that the plaintiffs were in. possession within 12 years of the suit.

The plaintiffs then took the matter in. appeal, and the lower appellate Court by its judgment, which is under appeal, came to a very clear finding that there was a tenancy in favour of the defendant''s predecessor-in-interest. He, therefore, found that the plain, tiffs were in constructive possession through their tenant, namely, the defendant, within, 12 years of the suit. He finds in substance that the defendant being a tenant, at soma time or other, it is for him to establish, acquisition of title by adverse possession. Therefore, on these grounds he reversed the decision of the learned Munsif, and gave the plaintiffs a decree. Mr. Sarju Prasad, who appears for the appellant, argues very strenuously, that this is a case in which the plaintiffs must prove subsisting title within 12 years of the institution of the suit. The suit is one in ejectment, to which Article 142, Limitation Act, would apply, and in such a case it was for the plaintiffs to establish that they were in possession within 12 years of the suit. It having been admitted by the plaintiffs that the defendant or-his predecessor-in-interest has been in possession of this property for about 30 or 35 years, the learned Subordinate Judge should have found that the plaintiffs'' suit was barred by limitation.

He urges that the lower appellate Court has nowhere found that there was a relationship of landlord and tenant as between the parties. There, fore, it was not necessary for the defendant to establish title by adverse possession, but it was necessary for the plaintiffs to establish, that they were in possession within 12 years of the suit. Mere proof of plaintiffs'' title will not suffice.

His contention, in my judgment, is not at all correct. He is wrong, in my view, in his submission that the learned Subordinate Judge has not come to a finding that there was ever any relationship of landlord and tenant as between the plaintiffs and the defendant. To make this clear, I wish to notice some of the passages in the judgment of the learned lower appellate Court, which will conclusively show that he has applied his mind to this aspect of the case and has come to a distinct finding. In his judgment dealing with the point of limitation he says:

Here we find that all that the plaintiffs have failed to prove is the story of tenancy set up by the plaintiffs, (here he means the fresh tenancy of 1340), the result of which is that rightly the presiding officer of the lower Court did not allow any amount by way of rent or damages to the plaintiffs. Merely on that score we cannot presume that the defendant has been in possession of the house quite independently of the plaintiffs. Exhibits 9 and 10, which are municipal papers, clearly show that the physical possession of the defendant has been as a tenant of the plaintiffs in the house in dispute. Apart from this, it is clear that the plaintiffs have been paying she municipal taxes all along, while the defendant never paid municipal taxes at any time.

Then he concludes:

I hold that the plaintiffs have had symbolical possession just as they have title to the house in question, and the physical possession of the defendant does not constitute ouster of the plaintiffs.

In my view, he thus very clearly finds that the defendant''s occupation was not independent of the plaintiffs, that is to say, not on his own independent title but as a tenant under the plaintiffs. He, therefore, holds that the plaintiffs were in constructive possession, though he used the wrong word "symbolical," through the defendant. Therefore, it was necessary for the defendant, in order to succeed in the case, to establish ouster, that is, assertion of hostile title as against the plaintiffs and claiming title on his own account and after such assertion, to the knowledge of the plaintiffs, his remaining in possession for the statutory period of 12 years or more. The lower appellate Court finds that this the defendant has not been able to do. Mr. Sarju Prasad, however, finds a vulnerable point in the judgment, namely, in the rather infelicitously expressed legal proposition with which the learned Subordinate Judge starts his judgment in so far as he deals with this aspect of the case. The passage runs like this:

The general principle of law is that possession follows title, and so unless and until it is proved that the man having actual physical possession over the house is in possession to the ouster of the plaintiff who has got title, he cannot be allowed to claim any right of keeping the house by virtue of that possession. In other words, unless and until the defendant''s possession is found to be adverse to that of the plaintiffs the defendant cannot claim any right or title to "retain the house".

It is clear, however, that when he propounded his proposition in these words he had in his view the facts of this particular case. It will appear from the above quotation, that he is talking of retention of possession by the defendant, which is just the term applicable when the defendant in his right as a tenant wants to resist ejectment on the part of the plaintiffs-landlords. However erroneous he may be in his expression of law, there is absolutely no hesitation in my mind that he has brought his mind to bear upon the real aspect of the case, namely, whether the plaintiffs had substantiated their allegation that the defendant or his predecessor-in-interest was a tenant in respect of the holding at however remote a time and after this was found he had to call upon and see the defendant to establish title by adverse possession to the ouster of the plaintiffs, which is just the right view that he should be deemed to have taken. Mr. Sarju Prasad, however, concedes that if it is held that the learned lower appellate Court has come to a finding that there was relationship of landlord and tenant between the parties, he cannot contend with success that the decision of the learned Subordinate Judge was wrong in law. His whole complaint was that there was no such finding, but I have shown how his contention does not pay attention to the clear finding in the Subordinate Judge''s judgment. We have also had the advantage of reading the previous two judgments of the trial Court and the lower appellate Court, and we have. fully satisfied ourselves that those findings, which have never been upset by the Court that remanded the case for a retrial on the limitation issue, make it very clear that at all stages and at all material times existence of relationship of landlord and tenant had been accepted to be a fact.

Mr. Rajkishore Prasad appearing for the respondents wanted to contend that even though there be no finding establishing the relationship of landlord and tenant between the plaintiff and the defendant in a suit in ejectment, Article 144 would apply if the plaintiff in his plaint does not make out a case of possession and dispossession. He cited Suraj Bali v. Mahadeo Prasad AIR 1932 Oudh. 46 in support of this contention. As was very rightly observed by my learned brother in course of argument, we have to interpret Articles 142 and 144 as they stand in deciding as to whether a particular case attracts the provisions of this Article or that Article. So far as Article 142 is concerned, it is not stated there that the suit should be one in which the plaintiff should allege that he has been in possession and dispossessed. It is not the form of allegations of the plaintiff which will determine the nature of the suit, but it is the substance and the actual facts found by the Courts which will go to decide whether the suit is one which comes within the purview of either Article 142 or Article 144. So far as the scope of the present appeal is concerned, it does not require us to go any further.

In the circumstances indicated above, I would uphold the judgment of the lower appellate Court, and dismiss this appeal with costs.

Meredith, J.

I agree to the order proposed, but with regard to the legal point last dealt with by learned brother I would not like to express a final opinion without further argument.