Thiruvengada Konan vs Venkatachala Konan and Others

Sadasiva Aiyar, J.—Mr. Justice Hannay and myself held in Somiammal v. Vellaya Sethurayan (1915) 29 M.L.J. 233 that where a landlord

(A) is under an obligation to put his tenant (B) into khas possession of the leased land, he (A) is entitled to succeed in a suit in ejectment brought

against a trespasser even if the suit was brought during the term of B''s tenancy.

In this case, however, the plaintiff had put his tenant (the 3rd defendant,) into possession and hence had discharged his obligation as landlord to

let the 3rd defendant into actual possession.

But the plaintiff has a reversion in the plaint lands and he might be said to have been dispossessed of that reversion when the defendants 1 and 2

took possession of the lands not only adversely to the tenant (the 3rd defendant) but claiming adversely to the plaintiff''s reversion.

In such a case, Sita Ram v. Ram Lal I L.R. 38 (1886) A. 440 decides that the landlord can be put in possession of his reversion by the passing

of a decree against the trespassers in the form indicated in Section 264 of the old CPC corresponding to Order 21 Rule 36 of the Civil Procedure

Code. I do not think it is necessary to adopt the rather too broad a view indicated in certain passages of the Judgment of Sundara Aiyar, J, in the

case Ambalavana Chetty v. Singaravelu Udayan (1912) M.W.N. 669, that the landlord even in such a case is entitled to khas possession from the

trespassers, the case Sita Ram v. Ram Lal I L.R. 38 (1896) A. 440, is not referred to by. Sundara Aiyar, J. in his Judgment. Mr. Venkatarama

Sastriar for the contesting respondents (defendants 1 and 2) argues that the landlord is entitled only to a declaratory decree and that a decree

granting possession of the reversion in the form indicated in Order 21, Rule 38 CPC is nothing more than a decree declaratory of the title of the

plaintiff to his reversion, which decree he argues should not be given to him at this stage. I think that though the distinction between a decree

declaring the landlord''s right to his reversion and a decree giving him possession of his reversionary right in the lands might be fine see Ghulam

Hussain v. Muhammad Hussain I L.R. (1909) A. 271, where existence of the distinction seems to be ignored) the said distinction is a real one.

For, it may be argued that a mere declaratory decree against a trespasser will not prevent the limitation period from running on, whereas, a decree

for possession of the reversion, properly executed, will nullify the effect of the adverse possession of that reversionary right by the trespasser during

that period (at least which elapsed before the possession of the reversion was so obtained in execution).

I think that on the facts found in this case, the plaintiff''s suit should not have been dismissed wholly; though he sued for khas possession which

he was not entitled to get during the period of the 3rd defendant''s lease.

Relying on Bissesuri Dabeea v. Baroda Kanta Roy Choudry ILR (1884) C. 1076 and Sita Ram v. Ram Lal (1912) M.W.N. 669 I would give

a decree declaring the plaintiff''s title to the lands against the defendants 1 and 2 and giving him what is called ""formal"" possession of the land by the

proclamation of his reversionary right, (namely the right to obtain khas possession of the lands at the end of the term and to be obtaining rents from

the 3rd defendant during the term of the lease). The claim for mesne profits will be disallowed.

The parties will bear their respective costs throughout.

Napier, J.

I agree.