Pannalal vs Abdul Wahid

P.R. Sharma, J.—This is a defendants'' second appeal against whom a suit for declaration and possession has been decreed by both the lower Courts.

Jiwanlal, Motilal and Shankarlal jointly owned the house in dispute which they mortgaged with possession on 18-7-1930 with one Ballabhdas. The mortgagors, however, continued to remain in possession of the mortgaged property in their capacity as tenants of the mortgagee. One Nathmal having obtained a money-decree against Jiwanlal and his two brothers, in execution of which he got the house in dispute auctioned, the equity of redemption in respect of the said house was purchased by one Malojirao on 13-10-1943. Thereafter Malojirao''s son Anandrao on 13-12-1943 sold the house during the life time of his father, to Abdul Wahid. The suit out of which the present appeal arises was filed on 26-3-1954 against Pannalal and Shankarlal. It was alleged by the plaintiff that on purchase by Malojirao of the equity of redemption in respect of the suit house the defendants attorned to him. It was further alleged that on 1-2-1941 a rent-note was executed by Motilal and Shankarlal in favour of Malojirao. Abdul Wahid further allege that the defendants paid rent to him till March, 1949. They, however, disclaimed the plaintiff''s title to the suit property in 1949 when the plaintiff wanted to re-build certain portions of the house. The defendants in the present suit sued Abdul Wahid for an injunction restraining him from demolishing certain portions of this house. The suit was, however; dismissed on the ground that the plaintiffs in that suit could not prove their title. Thereafter Abdul Wahid brought the present suit for declaration and possession.

The defendents in their written statement denied the plaintiff''s title to the property in dispute and contended that the suit was barred by time.

The facts that, the suit house originally belonged to Motilal, Shankarlal and Jiwanlal, that it was mortgaged by them with Ballabhdas on 18-7-1930 and that the mortgagers there after occupied the house in dispute as tenants of the mortgagee are not in dispute before me. The mortgage deed Ex. P. 14 and rent-note. Ex. P. 16 prove these facts beyond all doubt. The facts that the house in question was auctioned in execution of Nathmal''s decree and that its equity of redemption was purchased by Malojirao are further proved by the evidence of Kanhaiyalal. Harihar and Hiralal prove that Malojirao was given possession of the suit house on confirmation of the sale in his favour.

The Courts below have concurrently held that the house in suit was sold by Anandrao to the plaintiff and that prior to the sale Motilal and Shankarlal had on 1-2-1941 executed a rent-note (Ex. P. 1) in favour of Malojirao. Lastly the Courts below relying on Anandrao''s statement held that the defendants continued to pay rent to him till 1949 when they for the first time denied the plaintiff''s title. It, therefore, held that the plaintiff''s suit was not barred by limitation.

In support of the present appeal it was contended by the learned counsel for the appellants that the rent-note Ex. P. 7 was not proved according to law, that even if it be held that it was duly proved the tenancy under the said deed being only for a period of one year was determined on 1-2-42. The learned counsel contended that a suit for possession could, in view of the provisions of Art. 139 of the Limitation Act, be brought only within 12 years of this date. The present suit having been filed on 26-3-1954 was, according to the learned counsel, barred by time.

Ramdayal, the ascribe of the document Ex. P. 7, stated that Motilal, Shankarlal and Pannalal had got the rentnote Ex. P. 7 written out by him. Although he was not in a position to recollect, after the lapse of nearly 14 years when he was examined in Court, whether the executants signed in his presence, he was certain that Shankaralal and Motilal had both asked him to draw up the deed. Motilal was examined in Civil original suit No. 967 of 1949. He having died in the meanwhile, the statement Ex. P. 24-4 made by him in the former suit was produced in evidence in the present suit under the provisions of S. 33 of the Evidence Act. In that statement Motilal vaguely stated that his brother might have signed the rent-deed. Shankarlal, though he was a defendant in this suit, did not examine himself in order to rebut this evidence.

Having regard to all these circumstances it must be held that the courts below rightly held that the document Ex. P. 7 was executed by Motilal and Shankarlal in favour of Malojirao. On the expiry of the period of one year of tenancy under Ex. P. 7, a new tenancy was created by reason of the fact that the defendants continued to pay rent to Malojirao and Abdul wahid till 1949 as has been concurrently held by the Courts below. The case reported in AIR 1934 67 (Nagpur) ) on which reliance has been placed by the learned counsel for the appellants, was not one of a tenant holding over.

It was held in Sheo Dulare Lal Sah Vs. Anant Ram and Another, that the assent of the landlord to the continuance in possession of the tenant after the determination of the tenancy would create a new tenancy and make the tenant holding over in accordance with the provisions of S. 116 of the Transfer of Property Act. It was further held that to such a case Art. 139 of the Limitation Act has no application and the landlord can sue for possession within 12 years of the date when the tenant holding over repudiates the tenancy and set up an adverse title. It was held in AIR 1935 59 (Privy Council) that where, after the expiry of the period fixed in a lease the tenant continues in possession as a tenant on the same terms as expressed in the lease, he cannot claim to be in edverse possession. It would thus follow that once it is held that the defendants continued to pay rent to Malojirao and Abdul wahid till 1949 the present suit could not be held to be barred by limitation on the mere ground that the tenancy created under Ex. P. 7 had expired on 1-2-1942.

The plaintiff produced a copy of an application Ex. P. 9 made by him on 17-2-1943 for reconstruction of the house purchased by him as shown in the proposed site plan Ex. P. 11 Hariram supplied bricks and lime to the plaintiff for reconstruction of the house. He also stated that the entire house was rebuilt. His evidence was corroborated by Murli and Hiralal, who also deposed to the same effect. Hiralal and Murli further deposed that when the house was being re-constructed, the plaintiff allotted another house to the defendants for their residence and that they shifted to the new building after it had been completed. Motilal''s statement Ex. P. 24-4 also shows that three storeys on front side and four storeys in the back portion of the house had been newly constructed. The ground-floor of the house was not in his possession; whereas the upper two floors of the house were occupied by a tenant of the plaintiff. His inability to state who had rebuilt the house is more eloquent than speech. All these circumstances lend support to the plaintiff''s testimony that the defendants were paying rent to him. It is inconceivable that the defendants should vacate the portion of the house occupied by them with a view to enable the plaintiff to reconstruct the same unless the plaintiff was accepted by them to be its owner: nor would the plaintiff have allowed them to occupy a portion in the newly constructed building if they had not been paying rent to him and were disputing his title. It is now suggested by the defendants that the house was never reconstructed and that the finding of the Courts below on this point is perverse. As shown by me above the findings arrived at by the Courts below with regard to the trust worthiness of the version of Anandrao, Abdul Wahid, Hiralal, Harihar and Murli cannot be said to be unreasonable in view of the fact that it is in consonance with the surrounding circumstances of this case, and the admissions made by Motilal in Ex. P./24-4.

It must, therefore, be held that issue No. 5 was rightly decided by the lower Courts. The judgment of the District Judge Gwalior in the appeal arising from the decree passed in Civil original suit No. 967 of 1949 which was between the same parties would in my opinion be resjudicata on the point that the defendants have no title to the house in suit. The facts that the defendants are in possession of only a part of the house in dispute, that the two upper stories of that house are occupied by a tenant of the plaintiff to the knowledge of the defendants, and that the defendants were allowed by the plaintiff to occupy a portion of the newly constructed building lend substantial support to the version of Anandrao and the plaintiff to the effect that the defendants had attorned in favour of Malojirao, and after the sale of the house to abdul Wahid, they continued to pay rent to him.

Once it is held that the defendants were allowed by the plaintiff to continue in possession of the portion of the suit house under their occupation as his tenants they will be estopped from challenging his title as long as they continue in possession of the same. (See Munnalal vs. Balchand) 1961 J. L. J. 230).

It would appear from the statement of P. W. 7 Haridas s/o Goverdhandas that subsequent to the purchase of equity of redemption in respect of the house, the mortgage to which it was subject was redeemed by Malojirao. The counsel for the appellants, however, contended that even though Malojirao may be deemed to have acquired full rights of ownership to the house in suit Anandrao could not, during the life-time of his father, sell it to the plaintiff. The defendants cannot, I am afraid, be allowed to raise this plea. On the death of Malojirao, his son Anandrao would succed to his property and the subsequent acquisition of title by Anandrao in respect of the suit house would avail to the benefit of the plaintiff. See Sankari Ammal vs. Ramchandra (A. I. R. 1954 Mad. 861). When a person having a partial or no interest in a certain property transfers it and subsequently acquires an interest sufficient to justify the grant S. 43 of the Transfer of property Act applies and the transferee is entitled to the interest so acquired by the transferor. See Abdul Kabir and Others Vs. Mt. Jamila Khatoon and Others, .

For the reasons stated above I am of the opinion that this appeal has no force. It is hereby dismissed with costs.