Mehar Chand and Others vs Jaimal Singh and Others

D.K. Mahajan, J.—This second appeal must succeed on the short ground that the plaintiff''s suit is barred by time. Both the Courts below have taken an erroneous view of the matter so far as the question of limitation is concerned. The facts which are relevant to appreciate the controversy are as follows :

Before the year 1947, the plaintiff was the tenant and the predecessor-in-interest of the defendants was the landlord. Under a Firmani-Shahi issued by the Maharaja of Patiala before the merger of the Patiala State in the State of Pepsu, the subject-matter of the tenancy, that is, land measuring 53 Bighas 15 Biswas, was partitioned in the ratio of. two-fifths and three-fifths. Two-fifths of the land was to vest in the landlord defendant free from the occupancy tenancy, whereas three-fifths of the land was to vest in the occupancy tenant free from the ownership rights. In other words, the landlord got two-fifths of the land measuring 21 Bighas 10 Biswas without it being subject to tenancy rights of the plaintiff and the plaintiff got three-fifths of the land measuring 32 Bighas 5 Biswas free from the rights of the landlord and became the absolute owner thereof. In pursuance of this partition, the parties took possession of their respective shares of the land. After this, litigation arose between the plaintiff and the defendant and in that litigation, it was ultimately settled that the occupancy tenancy was to continue and the parties were to be relegated to the position held by them before the Firman-i-Shahi In spite of this, the tenant took no steps to regain possession of two-fifths of the land which had gone into the possession of the landlord. In the year 1953, the landlord''s rights were extinguished and the occupancy tenant was declared owner of the entire holding. In spite of this, the occupancy tenant took no steps to recover possession of the two-fifths of the land which had gone out of his possession by reason of partition under the Firmam-i-Shahi. The present suit for possession has been filed on the 26th August, 1963, In the plaint, it is stated that the plaintiff-tenant has been wrongfully dispossessed from the suit land within twelve years and, therefore, is entitled to possession by virtue of his having become the full owner of the land by reason of extinction of the landlord''s rights under the Punjab Security of Land Tenures Act of 1953. This suit was resisted by the defendants on the ground that it was barred by limitation. The Courts below decided the question of limitation in favour of the tenant and held the suit to be within limitation. The trial Court, while dealing with the question of limitation, observed as follows:

Nowhere the plaintiff has alleged that he has been dispossessed by the defendants and in order to substantiate this contention, he has cited AIR 1933 105 (Lahore) Ganpat Rai v. Ear Dial AIR 1333 Lah. 722 : (l933) 34 P.L.R. 1007, and AIR 1934 Lahore 245 . It has been further urged that the parties had been contesting their rights in the revenue Courts upto 29th January, 1963 and the suit having been filed within one year of that date is within limitation under Article 14 of the Indian Limitation Act also. The contention of the learned counsel for the defendants that because the defendants or their predecessor-in-interest had been in possession since 2005 Bk (that is 1948) the suit is barred by time and is not acceptable. It is held that the suit is within time.

The lower appellate Court, while dealing with the question of limitation, observed as follows:

The plaintiff has not based his suit on the title but upon his Possession. But I am afraid, the learned counsel is not borne out from the record. The plaintiff, according to the plaint, has alleged that he has become the owner of the suit land after depositing of the compensation on 4th February 1957 and has knocked the door of the Civil Court on the basis of this title which vested on him on 4th February 1957 and Article 144 of the Limitation Act is applicable to the facts of the case. The plaintiff has nowhere alleged that he has been dispossessed by the defendants and the suit is clearly within time.

In the plaint, in paragraph 8, it is stated that Mst Kishni, who is predecessor-in-interest of the defendants was right fully in possession of the suit land since 1952 and that after the litigation, to which I have made a reference earlier, her possession of the land was on account of her right to rent of the entire Khata, with the mutual consent of the parties. It is, therefore, clear from the plaint that the plaintiff has been out of possession since 1952 and he has sought to prove his possession of the land in dispute on the ground that the land was held by the landlords in lieu of Batai. If this fact had been established on the record, something may have been said for the plaintiff. Bat, on the entire record, there is no evidence that there was any agreement between the parties that the landlord was to hold the land in dispute in lieu of the batal for the land of the entire Khata. Once this basis in knocked off, it becomes apparent that the suit is for possession by the plaintiff who is out of possession, and, in this situation, Article 142 of the Limitation Act will apply. See in this connection the Full Bench decision of this Court in Santa Singh Gopal Singh and others v. Rajinder Singh Bur Singh AIR 965 P&H. 415.

Moreover, there is another way of looking at the matter. In the year 1948, the predecessor-in-interest of the defendants took possession of the land under the Firman-i-Shahi. The basis on which the possession was taken was knocked off by subsequent litigation with the result that the predecessor-in-interest was not entitled to retain possession of the land. But the fact remains that the predecessor-in-interest of the defendants continued in possession of the land for a period of over twelve years and, therefore, their rights are perfected to full ownership by adverse possession.

Mr. Dalip Chand Gupta, learned counsel for the plaintiff contended that the plaintiff acquired the right to possession by reason of the 1953 legislation when he became the owner of the land by operation of law.

This argument loses sight of the fact that the Act did not confer a right of possession on the occupancy tenants. It merely clothed them with a further right, that is, instead of occupancy tenants, they became full owners of the land. The right to recover possession of the land had accrued to the plaintiff after the setting aside of the partition under the Farman-i-Shahi. It is stated by the defendants that the plaintiff had lost possession of the land in the year 1948 and according to the plaintiff in the year 1952. There was nothing to prevent the plaintiff either before 1953 or after 1953 to recover possession of the land. The right to recover possession had accrued in 1950. The mere fact that the plaintiff improved his status from that of occupancy tenant to that of a full owner could not arrest the period of limitation from running out. It is well settled that once period of limitation starts running, nothing stops it. There is no statutory provision in the 1953 Act which stops the running out of the period of limitation. The plaintiff became entitled to possession from the year 1950 when the partition under the Firman-i-Shahi was set aside. The plaintiff''s suit to recover possession from 1950 is hopelessly barred by time. Therefore, there is no merit in this contention of the learned counsel.

The only other contention of the learned counsel for the plain tiff which remains to be noticed is based on Exhibit P. 13. It is stated by the learned counsel that the landlords recognized the occupancy tenant''s right to occupancy tenancy on the entire land. This, however will not affect the question of possession. It merely recognized the right of the tenant to recover possession from the landlords and if in spite of that recognition of the right, no steps were taken to recover possession, the fault lies with the tenant and not with the landlords. Moreover, Exhibit P. 13 does not, in any way, arrest the running of limitation which can only be arrested by delivery of possession by the landlords to the tenant or by the tenant''s recovering possession from the landlords or by the landlord holding possession on behalf of the tenant. Neither of these eventualities has taken place and all through, two-fifths of the land has remained in possession of the landlords. I, therefore, see no force in this contention of the learned counsel.

For the reasons recorded above, this appeal is allowed, the judgments and the decrees of the Courts below are set aside and the plaintiff''s suit is dismissed; but there will be no order as to costs.