Basantilal vs Ramcharan and Others

Dixit, J.—In this case the Plaintiff Ramcharan brought a suit for a declaration of his title to a portion of a house and possession thereof, against Basantilal, and Mst. Rajo and Budhsen legal representatives of one Gundharilal, alleging that he was the owner of the property in dispute and had rented out the same to Gundharilal on 24-7-1926; that Gundharilal paid rent to him until 10-3-1938; that for sometime Gundharilal himself kept his own shop in the house but later on allowed his cousin Basantilal to locate his shop there, continuing, however, to pay rent to the Plaintiff until 10-3-1938 and that subsequently when Gundharilal stopped paying rent he sued in 1942 (Civil Original Suit No. 122 of 98 in the Court of District Sub-Judge, Bhind) Gundharilal and Basantilal for rent and possession of the property; that his claim against Gundharilal was decreed but it was dismissed as against Basantilal on the ground that Basantilal was not his tenant.

The Plaintiff further alleged that in execution of that decree against the legal representatives of Gundharilal he obtained possession of the property but later on 11-12-1949 the Defendant Basantilal again secured the possession of the house and that Basantilal was now setting up a title in himself.

According to the Plaintiff the cause of action arose on 17-2-1942 when Basantilal in Civil Suit No. 122 of 98 filed a written statement repudiating his title to the house and that it also arose subsquently on 11-12-1949 when the Plaintiff was dispossessed and Basantilal obtained possession of the property in pursuance of an order made by the District Judge of Bhind in an appeal arising out of execution proceedings of the decree held by the Plaintiff against Gundharilal for rent and ejectment.

The Plaintiff made Mst. Rajo and Budhsen proforma Defendants in the suit. Basantilal pleaded that he was the owner of the properly; that the decision in the Plaintiff''s previous suit (Civil Suit No. 122 of 98) dismissing the Plaintiff''s claim for possession as against him operated as res judicata; and that the Plaintiff''s suit was barred by limitation. The learned Civil Judge First Class Bhind who tried the suit decreed the Plaintiff''s suit.

In appeal the learned District Judge of Bhind upheld die decision of the trial judge. The Defendant Basantilal has now filed this second appeal. The Plaintiff Ramcharan has filed a cross-objection praying that the mesne profits should have been allowed to him at the rate of Rs. 45/- per month instead of at the rate of Rs. 5/- per month.

Before me Mr. Shivdayal learned Counsel for the Appellant raised three points. First that the Plaintiff had failed to establish his title to the property; secondly that in view of the decision in the previous suit namely, Civil Suit No. 122 of 98, the present suit was barred; and thirdly the Plaintiff''s suit was not within time. In my opinion there is no force in any of these contentions.

Taking first the question of the Plaintiff''s title to the property, there is overwhelming evidence to show that the Plaintiff purchased a house, a portion of which is now in dispute from Radhelal and Guru Prasad by a registered sale deed on 7-12-1915 and that thereafter die Plaintiff dealt with the property as his own, realising rent from various persons including Gundharilal who had taken on rent different portions of the house.

The Plaintiff produced and proved the registered sale deed dated 7-12-1915 as also the sale deed by which his vendors had purchased the property in 1912. The Defendant Basantilal led no evidence whatsoever to show as to how he became the owner of the property in suit. The Defendant himself did not enter into the witness box and the witnesses whom he produced only deposed to his possession of the property. They did not state as to how Basantilal acquired title to the property.

The finding of the Courts below on the question of the Plaintiff''s title is, therefore, unassailable. As to the question of the decision in the previous suit operating as res judicata, I think that too, has been rightly decided by the Courts below by holding that the Plaintiff''s present suit is not barred by reason of the decision in the previous suit.

A perusal of the judgment of the Gwalior High Court pronounced on 18-4-1946 in Civil Appeals Nos. 117 of 2001 and 142 of 2001 arising out of Suit No. 122 of 98 is sufficient to show that in that suit Ramcharan did not seek to eject Basantilal on the ground that he was his tenant or that he was a sub-tenant of Gundharilal. Rameharan''s claim as against Basantilal in that suit was on the footing that Gundharilal had allowed him to use the premises and he was in possession of it.

Rameharan''s claim as against Basantilal was dismissed On the basis that he could obtain no relief against Basantilal inasmuch as it was not his plea that Basantilal was his tenant or Gundharilal''s sub-tenant. Basantilal no doubt claimed in that suit that he was the owner of the property.

But it was expressly held by the Gwalior High Court that Rameharan''s title to the property whether as against Gundharilal or as against Basantilal could not be investigated and adjudicated upon. The question of Rameharan''s title as against Basantilal was thus not allowed to be raised in the previous suit nor adjudicated. That being so, it cannot be maintained for a moment that the decision in the previous suit operates as res judicata here on the question of the Plaintiff''s title to the property and his right to obtain possession thereof.

Learned Counsel for the Appellant relied on - ''Parsa v. Daryav 1954 MP LJ HCR 1293 (A). The Plaintiff in that case sued one Biharilal to recover rent. The question of his title to the property directly and substantially arose on the pleadings of the parties and formed the foundation of the claim to recover rent.

The Plaintiff failed to prove his title. Thereupon he filed a second suit against the successor-in-interest of Biharilal for a declaration of title to and possession of the house in respect of which he claimed rent in the previous suit. It was held that inasmuch as the Plaintiff''s title was adjudicated upon in the previous suit, his second suit based on title against the successor-in-interest of Biharilal was barred by the judgment in the former suit. The decision in Parsa''s case (A), has thus no applicability whatever here.

The main contention of the learned Counsel for the Appellant is that the Plaintiff''s suit was barred by time. If was argued that the Plaintiff''s suit being one for ejectment, he is not entitled to succeed unless besides proving title, he shows in addition that he was in possession of the property within twelve years of the suit which was filed on 16-1-1950 and that the Plaintiff has failed to prove this.

Learned Counsel relying on - ''Premeswar Das v. Madhab Chandra'' AIR 1950 Gau 55 37 (B) and Ram Ganu Ghadge Vs. Hari Sambhu Ghadge, , submitted that the Plaintiff''s suit fell under Article 142, Limitation Act. I am unable to accede to this contention. Article 142 applies only where the Plaintiff while in possession has been dispossessed or has discontinued his possession. It has no application to claims which are neither in terms nor in substance claims to possession to a property by reason of dispossession or discontinuance of possession.

Now ''dispossession'' implies coming in of a person and the driving out of Anr. from possession. "Discontinuace" implies the going out of the person in possession and his being followed into possession by Anr. . This meaning of the terms ''dispossession and ''discontinuance'' for the purposes of Article 142 has been adopted in numerous cases which have been noted in Note 9 to Article 142 in Chitaley''s Limitation Act Vol. 3 (Edn. 3) at p. 2150. That Article has no applicability, where the Plaintiff is in constructive possession of the property.

For, there can be no dispossession or discontinuance possible in such a case in the sense in which the terms have been used in Article 142. This is the ratio decidendi of the decision of the Privy Council in - ''Bhupendra Narayan v. Rajeswar Prosad'' 1931 PC 162 : AIR V 18 (D), where the owner of a land made a grant of the surface rights thereof to a person, who later on claimed ownership rights in the subsoil, and it was held that once title is proved or admitted to be in the Zamindar grantor, he would be presumed to be continuing in possession of the subsoil until adverse possession by the trespasser, whether he is the grantee of the surface or a stranger is established and there can be no separate ownership of different strata of the subsoil.

The decision of the Privy Council is an authority for the proposition that in a suit for possession of a property from a tenant or a stranger, if it is proved that the Plaintiff is in constructive possession of the property through the tenant, then the tenant or stranger cannot call upon the Plaintiff to prove his possession and dispossession within twelve years of the suit but that if he claims title to property by reason of long possession, then he must establish adverse possession.

In the instant case the Plaintiff''s suit is on his title, and is for possession of the house from Basantilal, whom the Plaintiff''s tenant Gundharilal during the subsistence of his tenancy allowed to occupy the house. The allegation that Gundharilal had been in occupation of the house as the Plaintiffs tenant no doubt amounted to an allegation that the Plaintiff was in possession of the property through his tenant.

But the allegation that Basantilal was denying the Plaintiff''s title and refusing to vacate is not an allegation that Basantilal had dispossessed him. Here it has been found as a matter of fact that the title in the house belongs to the Plaintiff; that Gundharilal was his tenant and that it was Gundharilal who, during the subsistence of his tenancy with the Plaintiff, allowed the Appellant to occupy the house.

The Plaintiff was thus in constructive possession of the property through Gundharilal until Gundharilal delivered the possession of it after Ramcharan''s claim for possession of the property for rent and further for mesne profits was decreed in 1946 by the Gwalior High Court as against Gundharilal.

The fact that Basantilal was allowed by Gundharilal to occupy the property and that Basantilal repudiated the Plaintiffs title in the previous suit does not amount to the Plaintiff Rameharan''s ouster from the property. For, Gundharilal being his tenant, the Plaintiff Ramcharan could assert his possession only by recovery of rent and until he had failed to recover rent, it could not be said that he had been ousted from possession.

The Appellant took the plea which h failed to establish that his occupation was on his own independent title. In these circumstances the Appellant cannot put the Plaintiff to a negative proof upon the point of possession by simply pleading that he had long proclaimed title in himself and denied the title of the Plaintiff.

The rule is well established that so long as the relationship of a landlord and a tenant subsists, the tenant cannot set up any title by adverse possession however, notoriously he may proclaim title in himself and deny the title of the landlord. The fact that a landlord takes no step to contest the tenant''s hostile assertion in no way helps the tenant (See - ''Seshamma v. Chickaya'' 25 Mad 507 at p 511(E), - Gopal Chandra Das and Another Vs. Satya Bhanu Ghoshal and Others, , and AIR 1949 265 (Nagpur) .

If, therefore, Gundharilal could not set up any adverse to the Plaintiff during the subsistence of his tenancy, much less could be the Appellant, whose possession of the house has been found to be permissive from Gudharilal The Appellant could of course say that his occupation was independent of Gundharilal and assert adverse possession against Plaintiff.

In fact he did plead that he was in possession his own independent title but failed to establish it. He, however, never met the Plaintiff''s claim by plea that he was the owner having held adverse possession for over twelve years. On the authority of the decision of the Privy Council in '' AIR 1931 PC 162 V. 18 (D)'', it was necessary for him do so. As he failed to take up the plea of adverse possession and prove it, the Appellant cannot succeed the question of limitation.

Of the cases cited by the learned Counsel for the Appellant '' AIR 1950 Gau 55 V. 37 (B)'', was a case where the Plaintiff averred that the Defendant came into possession of a piece of land by permission. The Plaintiff, however, failed to prove the permissive character of Defendant''s possession.

It was hold that as the Plaintiff had failed to prove the Defendant''s permissive possession, he could succeed only on establishing his title and possession within twelve years. This is no doubt in accordance with the firmly established rule that in a suit based on title for possession of a property the Plaintiff must prima facie prove his title and his possession and dispossession within twelve years of the Suit.

The learned Judges or the Assam High Court, however, observed that Article 142 covered cases of actual and constructive possession and dispossession. This observation on a point which did not really arise in the Assam case seems to be inconsistent with the decision of the Privy Council in AIR 1931 162 (Privy Council)

The learned Judges of the Assam High Court relied on a Full Bench decision of the Madras High Court in - The Official Receiver of East Godavari Vs. Chava Govindaraju and Another, . That again was a case where the question whether Article 142 applies to cases of constructive possession and dispossession, did not arise.

All that was he1d in the Madras case was that a Plaintiff who is suing for possession of a property in the occupation of Anr. is not entitled to sueceed unless he shows in addition to title, that he has been in possession of the property within twelve years of the suit. In the Assam case reliance was also placed on - �Beharilal v. Narain Das� AIR 1935 Lah 475 ( V. 22) (FB) (I).

The Lahore case was somewhat akin to the present one. There the plaintiff brought a suit for possession of a house belonging to him on the allegation that he had given the same on lease to one Nabi Baksh in 1927 and that subsequently Nabi Bakhsh had sublet the house to Narain Das; that he first sued Nabi Baksh and Narain Das for rent and in that suit Narain Das denied his title, as also the fact that he was a tenant under Nabi Bakhsh; that his claim for rent against Nabi Bakhsh was decreed but dismissed against Narain Das.

On these allegations the Plaintiff brought Anr. suit against Narain Das for recovery of possession. The learned Judges of the Lahore High Court held that Article 142, Limitation Act governed the case. The reasoning was that the Plaintiff�s allegation that he had let out the house to Nabi Bakhsh was an averment that he was in constructive possession of it through his tenant and that his further allegation that Narain Das had denied his title and denied the title of Nabi Bakhsh was an averment about his constructive dispossession; and that, therefore, the suit fell under Article 142 which covered cases of actual and constructive possession and dispossession. With great respect to the learned Judges of the Lahore High Court, I do not find myself in agreement with the view take by them.

The decision in AIR 1935 Lah 475 (V. 22) (FB) (1), dose not give due weight to the meaning of the word ''possession'' and ''dispossession'' for the purposes of Article 142. Quite apart from this when the Plaintiff alleges that he is in constructive possession of a property through his tenant, is a necessary implication that during the period of tenancy he has not been dispossessed.

If therefore, along with such an allegation the Plaintiff further states that the Defendant-tenant or any person under him is now denying his title and refusing to deliver possession of the property, the denial of title cannot be taken as an act of dispossession. The Plaintiff''s allegation about the denial of title is only a statement of an excuse put forward by the tenant or any person under him for refusing to give possession of the property.

The Lahore case seems to me to be inconsistent with the Privy Council decision in AIR 1931 162 (Privy Council) . As to the other case cited by the learned Counsel for the Appellant, namely, ''1950 Bom 346 (AIR V. 37) (C)'', it is sufficient to say that it simply lays down the proposition that if the Plaintiff''s suit is one for possession upon the basis of prior possession followed by subsequent dispossession, then in that case the suit would fall under Article 142 Limitation Act and the Plaintiff has not merely to prove prima facie his title but his possession and dispossession within twelve years.

As I have indicated above here the Plaintiff''s suit is not one for possession on the footing of prior possession and subsequent dispossession. To my mind the decision that is relevant here is one of Allahabad High Court in - ''Jai Chand v. Girwar Singh'' AIR 1919 All 403 (2) ( V. 6) (J). In that case the Plaintiff pleaded that the Defendant was in possession of the property as his licensee; the Defendant denied the licence and set up adverse possession. The Plaintiff established his title.

The first appellate Court held that the onus lay on the Plaintiff to prove not only his title but also his possession within twelve years of the suit and accordingly dismissed the suit. The Allahabad High Court reversed die decision of the lower appellate Court holding that the Plaintiff having based his case upon the license, from the moment the Defendant repudiated the licence, it was no longer possible for him to rely upon the licence or to deny its revocation and that his possession was that of a trespasser without any defence unless he established his title by adverse possession and that the onus of establishing a title to the property by reason of possession for a certain stipulated period lay on the person asserting such possession.

The Allahabad case was based on the Privy Council decision in ''Secy, of State v. Chelliani Rama Rao'' AIR 1916 PC 21 ( V 3) (K), where it was observed that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession and it would be contrary to all legal principles to permit a squatter to put the owner of the fundamental right to a negative proof upon the point of possession.

In my opinion in the present case the Plaintiff haying established the tenancy with Gundharilal and the fact that Gundharilal allowed the Appellant to occupy the house, and the Appellant having failed to establish his independent title, no question of dispossession of the Plaintiff could arise so as to attract the application of Article 142, Limitation Act.

Even if it is assumed that Article 142 governs the case, die Appellant''s case is in no way improved. For, the time for the Plaintiff''s suit would run not from the date when the Plaintiff first came to know that the Appellant was denying his title or from the date when he filed his written statement in the previous suit denying the Plaintiff''s title, but from 1l-12-1949, that is to say, from the date on which the Plaintiff, having already obtained possession of the property in execution of his decree against the legal representatives of Gundarilal, was dispossessed therefrom by Basantilal in pursuance of an order made by the District Judge of Bhind in an appeal arising out of execution proceedings of the decree against Gundharilal.

The Plaintiff is entitled to reckon the period of limitation from the date of the dispossession on 11-12-1949. On that reckoning his suit filed on 16-1-1950 is clearly within time. When the Plaintiff succeeded in getting possession of the property in executions of his decree against Gundharilal, the continuity of the Appellant''s possession was broken even though he succeeded in appeal in getting back the possession.

The Appellant cannot, therefore, maintain that the Plaintiff has lost title to the property by reason of his, that is the Appellant''s continuous possession for over twelve years before the institution of the suit. This view is supported by the decisions in - AIR 1929 129 (Nagpur) (L); Manki Kank Ratan Vs. Sundarmunda and Others, , and ''Laxmipathaya v. Ram chandra'' AIR 1917 Mad 689 ( V. 4 )(N).

For the foregoing reasons I am of the view that the Defendant''s appeal must be dismissed with costs. As to the Plaintiff''s cross-objection for mesne profits at an enhanced rate, it must also be dismissed with costs; The Plaintiff has valued the cross-objection at Rs, 1297/8/- but has paid a Court-fee of Rs. 15/- only thereon. This Court-fee is clearly itsufficient.

The Plaintiff was in a position to determine precisely the amount of mesne profits claimed by him at the rate of Rs. 45/- per month upto the filing of the cross-objection. He should ha valued it accordingly and paid ad valorem Court-fees. The Plaintiff has also not been able to prove that the property in suit could have given him a profit at the rate of Rs. 45/- per month.

In the result both the Defendant''s appeal and the Plaintiff''s cross-objection are dismissed with costs.