Gurudutt vs Amarnath and others

B. N. Sapru, J.

This is a defendant''s second appeal arising out of a suit for ejectment, arrears of rent and mesne profit instituted by the plaintiff against the defendants.

The plaintiff''s case was that the house in suit, namely, house No. 117A old/146 new, Gariwan Tola, Allahabad, belonged to one Narayani Devi, and had purchased the same through a registered saledeed dated 2861968. It was further the case of the plaintiff that defendants Nos. 1 and 2 were occupying a portion of the house No. 146, Gariwan Tola, as tenant at the rate of Rs. 15/per month. It is asserted that as they were tenants of the previous owner, after the saledeed they became tenants of the plaintiff. The defendants were in arrears of rent from 161968 to 3171969 amounting to Rs. 195/and therefore, a combined notice was sent to them demanding the arrears of rent and terminating their tenancy under Section 106 of the Transfer of Property Act. The notice was served on the defendants, but they did not pay the rent.

The defendants filed a joint written statement and contested the suit. The defendant''s case was that they had taken the land, on which the house in dispute stands, on lease at the rate of Rs. 2/ per month and that the house has been constructed by the defendants. They further alleged that the house is not a part and parcel of house No. 146 New/117 old, as asserted by the plaintiff. The defendants further pleaded that they having been in possession for more than 12 years, they have acquired right by adverse possession and their possession cannot be challenged. The defendants denied the existence of relationship of landlord and tenant between them and the plaintiff.

The suit was originally filed in the Court of Munsif on 3091969. As the defendants denied the title of the plaintiff, the plaint was amended and the relief was also sought by the plaintiff on the ground of title against the defendants. The valuation was amended and as the valuation exceeded the pecuniary jurisdiction of the Court of Munsif, the Court of the Munsif returned the plaint to the plaintiff on 2841972 for presentation to the proper Court and the same was filed in the Court of Civil Judge on the same day, i. e. 2841972.

The findings of the lower appellate Court are that the house in suit bears No. 117A (old)/146 (new), Gariwan Tola, Allahabad, as asserted by the plaintiff. It has also been found that the said house belonged to Smt. Naryani Devi, who transferred it to the plaintiff by a registered saledeed dated 2861968.

The lower appellate Court has also found that the defendant''s case that they had taken only the land from Smt. Naryani Devi on lease at a rent of Rs. 2/ per month was incorrect, and, in fact, there existed an old Khaprail over the land in suit, which has been reconstructed by Smt. Narayani Devi. The lower appellate Court has affirmed the finding of the trial Court that the defendants were tenants of Smt. Narayani Devi at the rate of Rs. 15/ per month, as asserted by the plaintiff. The lower appellate Court has also held that the title to the house passed to the plaintiff on the execution of the registered saledeed dated 2861968. The plea of adverse possession advanced by the defendants has been negatived by the lower appellate Court. The lower appellate Court has affirmed the decree passed by the trial Court, who decreed the suit for ejectment, arrears of rent and mesne profits.

Aggrieved by the order of the lower appellate Court the instant second appeal has been filed.

Shri V. P. Mista io support of the appeal has urged that the suit is batted by limitation, in view of the provisions of Article 144 of the Limitation Act. That article provides a limitation of 12 years and the period of limitation starts running when the possession of the defendant become adverse to the plaintiff. The argument of the learned counsel was that in 1959 a notice was sent by Smt. Gulab Devi, who was one of the predecessors in interests of the plaintiff, requiring the defendants to pay the rent. The defendants denied their liability to pay rent and the right of Smt. Gulab Devi to realise the rent, as she was not the landlady. The submission is that 12 years had expired from the date of the reply of the defendants to Smt. Gulab Devi before the institution of the suit, and, as such, the limitation for filing a suit for possession against the defendants had run away. As mentioned earlier, the finding of the Court is that the defendants were first the tenants of the predecessor in interest of the plaintiff and thereafter of the plaintiff. The tenants by merely denying the title of the admitted landlord, without first openly surrendering possession, cannot set up the plea of adverse possession. It is not the case of any party that the defendants ever surrendered possession and then reentered the possession. Thus, the argument based on adverse possession under Article 144 of the Limitation Act fails.

The next argument of the learned Counsel for the appellant is that if Article 144 of the Limitation Act is not applicable, then the suit is barred by the provisions of Article 142 of the Limitation Act. The case of the defendants is that Smt. Gulab Devi sent a notice to the defendants asking them to pay the arrears of rent for previous three years in 1959, and the defendants having denied the relationship of the landlord and tenant, they had dispossessed the predecessor in interest of the plaintiff from the property in suit three years prior to the date of notice, i. e. from 1956. A tenant''s possession with payment of rent cannot be construed as dispossession of the plaintiff landlord, nor it can be held that the landlord had discontinued possession when the tenant committed default in the payment of rent. The argument of the learned Counsel for the appellant based on Article 142 of the Limitation Act is also rejected.

The third submission of the learned counsel for the appellant is that on the finding that the defendants were the tenants and the plaintiff was landlord, the Civil Judge had no jurisdiction to try the suit, as the jurisdiction vested in the Judge, Small Causes Court by virtue of Civil Laws Amendment Act, which came into force on 1291972. The learned Counsel points out that in cases between landlord and tenants where recording of evidence had started, as in the instant case, the statute automatically transferred the pending cases to the Court of Judge, Small Causes Court.

The defendants had themselves denied the title of the plaintiff and put the plaintiff to prove his title. For adjudication of the case it was necessary for the Court to determine the title of the plaintiff to the property. The question of title could not be decided by the Judge, Small Causes Court. The plaintiff has asserted that the defendants were his tenants. The defendants had denied the relationship of landlord and tenant. Before this question could be determined, it was for the plaintiff to prove his title to the property.

Amongst the issues framed by the trial Court, the following issues were on the above point :

"2. Whether the plaintiff is the owner of the house in suit ?

Whether the relationship of the landlord and tenant exists between the plaintiff and defendant Nos. 1 and 2 ?

Whether the defendants 1 to 3 are tenants of the plaintiff on Rs. 15/ per month as alleged ?

Whether a valid notice was served on defendants 1 to 3 �?�

The cause of action in the amended plaint included a recital that the plaintiff was owner of the property. The averment was not a simple assertion that the plaintiff was landlord and the defendants were tenants. The cause of action, as disclosed in the plaint, thus, was not based exclusively on the relationship of landlord and tenants between the plaintiff and the defendants. In this view of the matter the Judge Small Causes Court would have no jurisdiction to decide the suit. The argument, therefore, that the suit was not cognizable by a regular Civil Court, but was cognizable only by Judge Small Causes Court cannot be accepted and is, therefore, rejected.

In this connection another argument based on the question of jurisdiction has to be noticed. The argument of Sri V. P. Misra is that in a suit between the landlord and tenant the question of title to the property is irrelevant, and, as the Court went into the question of title, it must be held that the defendants had dispossessed the plaintiff by not paying rent and denying his title and, therefore, the suit must be held to be barred under the provisions of Article 142 of the Limitation Act. This argument proceeds on the basis that whenever the plaintiff''s title is disputed by a tenant, who is not paying rent, it must be held as a matter of law that the plaintiff has been dispossessed from the property in suit. The dispossession contemplated by Article 142 of the Limitation Act depend on the facts of each case, which would indicate dispossession by the defendants of the plaintiff and would not depend on a denial of the title by such a tenant as correctly argued by Shri B. C. Khandpal counsel for the respondent.

In the result, the appeal fails and is dismissed with costs. The interim order dated 25.3.1977 as confirmed on 1271977 is vacated.