(Prayer: Second Appeal filed Section 100 of the Code of Civil Procedure against the judgment and decree dated 20.06.2000 made in A.S.No.100 of 1999 on the file of Principal Subordinate Judge, Mayiladuthurai, reversing the well considered judgment and decree dated 29.10.1999 made in O.S.No.366 of 1995 on the file of the District Munsif Court, Sirkali.)
1. The defendant is the appellant.
2. The present appeal arises against the judgment and decree of the Court of the Principal Subordinate Judge, Mayiladuthurai, in A.S.No.100 of 1999, dated 20.06.2000, in reversing the judgment and decree of the learned District Munsif, Sirkali, in O.S.No.366 of 1995, dated 29.10.1999.
3. For the sake of convenience, the parties shall be referred to as plaintiffs and defendant.
4. O.S.No.366 of 1995, was originally presented as O.S.No.264 of 1991 on the file of the learned Subordinate Judge at Mayiladuthurai. On account of the enhancement of pecuniary jurisdiction of the Civil Courts, the suit stood transferred from the file of the Sub Court, Mayiladuthurai, to the file of the District Munsif at Sirkali, and re-numbered as O.S.No.366 of 1995.
Facts according to the plaint:
5. The plaintiffs’ claimed that they are the owners of the suit property. The defendant is their close relative. The plaintiffs had put the defendant in possession of the property by virtue of a registered “paguthi” deed dated 26.10.1960. As per the “paguthi” deed, the rent agreed to be paid by the defendant to the plaintiffs was Rs.42 per annum. The period fixed under this deed was two years. In terms of the “paguthi” deed, the defendant had to surrender the possession of the property on the expiry of two years. In case the defendant did not surrender possession, the defendant agreed to pay the same rent till actual possession is handed over.
6. The plaintiffs pleaded that the defendant defaulted in payment of paguthi for several years. On account of the close relationship between the plaintiffs and defendant, the plaintiffs did not want to precipitate the matter. In and about 1989, the defendant started causing damages to the suit properties by excavating earth from it. This constrained the plaintiff to fill up a pit and to undertake repair work. They claim that they spent around Rs.15,000/- for the repair work. Thereafter, the plaintiffs called upon the defendant to surrender possession of the property. He did not do so. Hence, a notice was issued on 15.02.1991 by the plaintiffs to the defendant. There was no reply to the said notice. Hence, the plaintiffs issued another notice on 01.09.1991, terminating the tenancy of the defendant and calling upon him to surrender possession of the property, to pay the arrears of rent, and also the estimated damages of Rs.15,000/-. Despite the service of notice, the defendant did not surrender possession.
7. The plaintiffs added that, on 13.03.1961, they had borrowed a sum of Rs.1,260/- from one, Andal Ammal, the mother of the defendant. As a security for the said amount, they had mortgaged the suit property. The mortgage expired on 13.03.1964, and that it had become time-barred. Hence, they came forth with the suit for the following relief:
“a)directing the defendant to surrender possession of the suit property;
b)directing the defendant to pay the arrears of rent and damages as claimed in the details of valuation;
c)directing the defendant to pay future profits till actual delivery is effected;
d)to award all costs of the suit;”
8. Summons were served on the defendant. He filed a detailed written statement.
Case of the defendant:
9. The defendant admitted that the parties to the suit were close relatives. He added that the suit property had been usufructuarily mortgaged in favour of one Ulaganatha Pillai for a sum of Rs.100/-. Thereafter, realising that the suit property is situated to the rear of his property, he executed a “paguthi” deed on 26.10.1960. He pleaded that the entire suit property did not come into his possession on that date, since Ulaganatha Pillai has fenced and kept a portion of the property under his possession.
10. He accepted that a mortgage has been executed by the plaintiffs in favour of his mother on 13.03.1961. It was only after clearing the debt due to Ulaganatha Pillai that he could assume possession of the entire extent. He pleaded that in and about March 1963, the plaintiffs’ wanted to alienate the property for a sum of Rs.2,250/-. After adjusting a sum of Rs.1,260/- which the plaintiffs owed to Andal Ammal, he paid a further sum of Rs.500/- towards the agreement.
11. He added that, it was agreed between the plaintiffs and defendant that, on payment of the balance, the plaintiffs will execute a sale deed in his favour. This agreement of sale was an oral one, entered in the presence of three gentlemen known to both parties, namely, S.Rajagopal; N.Krishnamurthy; and D.Packrisami. On account of this arrangement, Andal Ammal made an endorsement on the mortgage deed and handed over the same to the plaintiffs. Pursuant to this, a further sum of Rs.500/- was paid by the defendant to the plaintiffs.
12. The defendant added that no time limit has been fixed for the sale. It was agreed between the parties that the conveyance will be executed, once the remaining amount is paid. In 1990, the defendant proposed to construct a septic tank for the latrine in his house. Prior to the construction, he approached the plaintiffs, and offered a sum of Rs.500/- and requested them to execute the sale deed. The defendant added that, the plaintiffs taking advantage of the fact that the agreement of sale had not been reduced into writing, refused to honour the original commitment and demanded a huge premium. The defendant was not willing to pay the additional sum sought for by the plaintiffs. Soon thereafter, the plaintiffs issued a first notice.
13. On receipt of the same, the defendant and his brother in-law, one, Srinivasan approached the plaintiffs and offered to pay a sum of Rs.1,000/-, instead of the original sum of Rs.500/-. The plaintiffs refused this offer as the value of the property had gone up several times. The defendant pleaded that the plaintiffs are duty bound to execute a sale deed as per their oral agreement of sale of the year 1963 and the suit for ejectment is not maintainable. Insofar as the damages claimed, the defendant added that, except for locating the septic tank in a portion of the suit property, he has not damaged the same and hence, the claim for damages is imaginary and unsustainable. He also added that, a notice issued under Section 106 of the Transfer of Property Act, 1882, is not a valid one and hence, the suit has to fail.
14. This written statement had been filed, when the suit was pending before the learned Subordinate Judge at Mayiladuthurai. On transfer of the suit from Mayiladuthurai to Sirkali, he filed an additional written statement. In this statement, he denied the right of the plaintiffs to the suit property. According to him, the plaintiffs were the son of one, Thirumangaldoss Pillai and the grandsons of one, Duraisamy Pillai. He added that the plaintiffs’ father had sold the property in favour of one Singaravelu Pillai, son of Srinivasa Pillai, as early as on 07.10.1936. The sale was by way of a registered document for a valuable consideration. On the same day, Singaravelu Pillai took possession of the property. Since Thirumangaldoss Pillai had sold the property in favour of Singaravelu Pillai, on and from the date of the sale, he lost his right, title and interest over the same. Since the father himself has lost the title to the property, the sons cannot claim any right, title or interest over the suit property.
15. He added that, on account of the fraud played by the plaintiffs on the defendant, the “paguthi” deed dated 26.10.1960, came to be entered. He pleaded that all the transactions post the sale dated 07.10.1936 are invalid and unenforceable in law. He reiterated that the notice issued by the plaintiffs, prior to presentation of the suit is invalid, improper and inadequate.
16. He took yet another plea that the suit property belongs to the Government and not to the plaintiffs. He added that he had been benefitted with a patta by the Government to an extent of 0.1080 hectares and the revenue record had been mutated to R.S.No.683/6. Since the patta had been granted by the Government in the exercise of its paramount and sovereign powers, the civil court has no jurisdiction to question the same or eject the defendant from the property, as he is in possession in his own right.
17. He added, unless and until, the patta is cancelled in the manner known to law, the suit for ejectment is not maintainable. He also added that he and his predecessors-in-interest have been in possession of the property from 1936 onwards, and as he had enjoyed the property continuously, openly, and against the interest of the plaintiffs, he has prescribed title by adverse possession. He was cautious enough to add that the plea of adverse possession was being taken, without prejudice to other pleas, that have already been taken in the original written statement. On these pleas, he sought the dismissal of the suit.
18. The learned Trial Judge, on the basis of these pleadings, framed the following issues and additional issues:
19. In support of their case, the first plaintiff entered the witness box as P.W.1, and he marked Exs.A1 to A3. On the side of the defendant, he entered the witness box as D.W.1 and examined three other witnesses in support of his plea.
20. After a detailed analysis of the evidence, the learned Trial Judge had come to a conclusion that, as the defendant is in occupation of the property in a capacity as mortgagee, the suit for ejectment is not maintainable. Hence, he dismissed the same.
21. Aggrieved by the said judgment and decree, the plaintiffs preferred an appeal before the Principal Sub Judge at Mayiladuthurai. This appeal was received as A.S.No.100 of 1999.
22. After hearing both sides, the learned Principal Subordinate Judge came to a conclusion that, as the “paguthi” deed had been admitted by the defendant, the Trial Court had erred in dismissing the suit. Consequently, he allowed the appeal and decreed the suit as prayed for, with costs.
23. Aggrieved by the reversal, the defendant is on appeal before this Court.
24. Pending the appeal, the sole defendant / appellant passed away and his legal heirs were brought on record by this Court. Similarly, the plaintiffs too, did not survive to see the end of this appeal. Their legal heirs have also been brought on record.
25. At the time of admission, this Court framed the following substantial questions of law:
“1.Whether the lower appellate Court had not erred in law in failing to hold that the respondents / plaintiffs had no title to the suit property in view of the fat that it is admitted that the father of the respondents / plaintiffs had sold the suit property to one Singaravel Pillai even during his life time under a registered sale deed 7.10.1936?
2.Whether the lower appellate Court had not erred in law in holding that the right to redeem the mortgage dated 13.3.1961 in favour of the mother of the defendant is not barred and in holding that respondents / plaintiffs have the right to redeem?
3.Whether the lower appellate Court has not erred in law in holding that the rule of estoppel contained in Section 116 Evidence Act will apply ignoring the fact that the denial of title is long after the cessation of the alleged tenancy arrangement and supercession of the same by the mortgage by respondents / plaintiffs dated 13-3 1961 and which mortgage had not been redeemed?
4.Whether the Courts below erred in failing to consider and render a finding as to the frame of suit when it is established that there was a usufructuary mortgage which had not been redeemed and when the suit is framed as one between landlord and tenant under Section 43(2) of the Court Fees Act.”
26. With the appeal being ready for hearing, I took up the same for final disposal.
27. I heard Ms.Chitra Sampath, Senior Counsel for Mr.I.Abrar Mohamad Abdullah for the appellants and Mr.C.Jagadish for respondents 3 to 5.
28. Ms.Chitra Sampath urged that, though several substantial questions of law have been framed, she is going to press only one point, namely, that the suit is barred by limitation by virtue of Article 67 of the Limitation Act. She pleaded that, on the reading of the plaint, the suit is barred, as there is no plea on the continuation of tenancy. She stated that, though no issue of limitation has been framed by the learned Trial Judge or by the First Appellate Court, it is the duty of both the Courts below, as well as of this Court, by virtue of Section 3 of the Limitation Act, to dismiss the suit, since it is barred by limitation.
29. Her plea is that, a reading of the “paguthi” deed would show that the tenancy commenced on 26.10.1960 and the period of tenancy was for two years. As the tenancy stood expired by passage of time, the period of limitation commenced from 26.10.1962. Applying Article 67, she pleads that the limitation expired with 25.10.1974. Hence, the presentation of the suit on 03.10.1991 is hopelessly barred. She added that Section 111(a) of the Transfer of Property Act would apply to the facts and not 111(h). She urged that the appellant is not a tenant holding over, but a tenant at sufferance and hence, a notice under Section 106 of the Transfer of Property Act, itself is otiose and unnecessary. The limitation, having commenced on the expiry of the term, the appeal has to be allowed and the suit has to be dismissed as such.
30. She relied upon the following judgments in support of her arguments:
(i)Bhagabat Patnaik and others Vs. Madhusudan Panda and others, (1964 SCC OnLine Ori 33);
(ii)Mst.Sardaran and others Vs. Sunderlal Baldeo Prasad and others, (1968 SCC OnLine All 262);
(iii)R.V.Bhupal Prasad Vs. State of A.P. and others, [(1995) 5 SCC 698];
(iv)Dr.N.Govindarajulu, rep. by his Power of Attorney Agent G.Radhamma Vs. K.Subramaniam, (2001-2-L.W. 413);
(v)Nand Ram Vs. Jagdish Prasad, [(2020) 9 SCC 393] and
(vi)Ponnusamy Vs. Govindan & another, [(2022) 2 CTC 770].
31. Torpedoing this argument, Mr.C.Jagadish urged that under Ex.A1, tenancy continues till possession is handed over and therefore, the defendant is not entitled to urge that Section 111(a) applies. He pointed out that though the defendant had projected a mortgage, the defendant had never produced the mortgage deed before the Court. He pointed out that the documents said to have been executed in favour of Singaravelu Pillai and Sadagopal Pilllai on 07.10.1936 and 02.12.1949, relate to entirely different set of properties and do not pertain to the suit schedule property. He added that the defendant, having continued in possession of the property as a tenant, and since Ex.A1 calls upon the defendant to pay the “paguthi” till he hands over the possession, Section 111(a) is inapplicable. He urged, it is the duty of the tenant to pay the rent and for the fact that he did not pay the rent, does not mean the tenancy had been determined.
32. He urged that the plea of limitation had not been raised before the Trial Court or the Lower Appellate Court and it is for the first time that this plea is being raised by the defendant in this Second Appeal. Reading the findings of the Lower Appellate Court, he pointed out that as the “paguthi” deed had been admitted, the defendant is bound by the same. He stated that the error committed by the Trial Court had been rectified by the Lower Appellate Court and hence, the second appeal deserves to be dismissed.
33. In support of his contention, Mr.C.Jagadish relied upon the following judgments:
(i)Srinivasa Ayyar Vs. Muthusami Pillai, (1900 SCC OnLine Mad 24) and
(ii)Thambusamy Vs. Mani, (2009 SCC OnLine Mad 1774).
34. I have carefully considered the submissions of both sides and have gone through the records.
35. At the outset, I shout point out, though this appeal has been admitted on as many as four substantial questions of law, the learned Senior Counsel for the appellants has decided not to urge any of these points. She has projected the point on limitation as the only ground to get the appeal allowed and the suit defeated. Hence, the questions of law have been re-framed as follows:
“1)Whether the appellants are entitled to raise the plea of limitation for the first time in a second appeal, when the written statement is bereft of such a plea, appealing to Section 3 of the Limitation Act?
2)Whether in the light of Ex.A1, the Lower Appellate Court was right in decreeing the suit?”
36. For a century and more, it has been settled that, a counsel has the authority to abandon the issues framed for the Court’s consideration. Such an abandonment would be binding on the parties. [See, Raja Bommadevara Venkata Narasimha Naidu and another Vs. Raja Bommadevara Bhashya-Karlu Naidu and others, 1902 SCC OnLine PC 8]. Hence, the request of the learned Senior Counsel that she be permitted to restrict her plea only on the aspect of limitation is granted.
37. Ms.Chitra Sampath relies upon Section 3 of the Limitation Act, 1963, to state that a submission on limitation can be raised at any stage of the proceeding, even without a written plea to that effect. I have gone through the written statement, nowhere has the defendant raised the plea of limitation as a bar to the suit. The question for consideration is whether such a plea is tenable.
38. Under Section 3 of the Limitation Act, 1963, it is the duty of the Court to dismiss any suit, appeal or application, if the same is executed, preferred or made after the prescribed period of limitation. This provision is subject to Sections 4 to 24. It calls upon a Court to dismiss a suit, appeal or application, even if limitation has not been set up as a defence.
39. It is apposite to notice Order VIII Rule 2 of the Code of Civil Procedure, 1908. Under this provision, the defendant is called upon to raise by way of pleading of matters, which would show to the Court that the suit is not maintainable or the transaction is void or voidable in point of law. It also calls upon the defendant to raise such pleas relating to fraud, limitation, release, payment, performance, or facts showing illegality. Order VIII reads so since the opposite party should not be taken by surprise. The issues covered under this provision are issues of fact, not arising out of the plaint.
40. If I were to read Section 3 of the Limitation Act, 1963, in isolation, perhaps it would assist the arguments raised by Ms.Chitra Sampath, that a defendant can raise a plea of limitation at any stage of the proceedings. Yet, this would be running contrary to Order VIII Rule 2 of Code of Civil Procedure, 1908. To a casual read, it would look as if Order VIII Rule 2 of Code of Civil Procedure and Section 3 of the Limitation Act, 1963 are in conflict with each other. However, a careful perusal of both the provisions would show that the Court is called upon to apply Section 3 of the Limitation Act when the facts pleaded in the plaint are sufficient to show that the plaint is barred by limitation. If the plaint does not so disclose that the suit is barred, then, it is the duty of the defendant to plead so, as it is an “issue of fact not arising out of the plaint”. It is the duty of the Court to harmoniously read two statutes, so as to ensure there is no conflict between them.
41. Hence, I am of the view that Section 3 of the Limitation Act, 1963, and Order VIII Rule 2 of the Code of Civil Procedure, 1908, would have to be read in the following manner:
(i)Section 3 of the Limitation Act, 1963, mandates that limitation is a material question whether raised by parties or not.
(ii)A Court is not bound to raise and decide a question of fact on its own motion. This is found under Order XIV Rule 1 of the Code of Civil Procedure that, issues have to be framed when a material proposition of fact or law is affirmed by one party and denied by the other.
(iii)When the question of limitation is a pure question of law, capable of being determined on the basis of the pleadings, admitted facts or evidences before the Court, then a Court is bound under the provisions of Section 3 of the Limitation Act to raise such a question suo motu and answer the same.
(iv)When the question of limitation raises the issue of fact not arising from the plaint, the defendant is bound under Order VIII Rule 2 of Code of Civil Procedure to raise such a question in his written statement.
(v)If the defendant fails to do so, it is entirely within the discretion of the Court whether to allow the question to be raised or not. (See, Official Trustee Vs. Mrs.Raeburn and others, AIR 1940 Rang 207 and Sadakali Khan Vs. Janakinath Singh Roy, AIR 1924 Cal 463).
42. The Code of Civil Procedure, 1908, is a code of fairness. The purpose for calling upon a party to confirm or deny a fact or law is because, one or the other party must not be taken by surprise. If the defendant feels that the suit ought to be dismissed on the ground of limitation, then the plea of limitation, being a mixed question of law and fact, it is the duty of the defendant to be vigilant and to specifically plead so. This is because the issue whether the defendant continued to be in possession after the “paguthi” deed had been executed under Ex.A1 as a tenant or the tenancy determined by efflux of time is a mixed question of law and fact. This is especially so, since the plaintiff has specifically pleaded in paragraph No.37 of the plaint as follows:
“If in case, the defendant do not surrender possession, within the time, the defendant has agreed to pay the rent at the same rate till actual possession is handed over.”
43. It is the assertion of the plaintiffs that the defendant continued to be in possession of the property as a tenant. A careful perusal of the written statement and the additional written statement show that this aspect was never denied by the defendant. The parties went to trial without the plea of limitation being raised. They contested the appeal without the plea of limitation. To raise this plea of limitation, which in this case, is a mixed question of law and fact, for the first time in the Second Appeal and that too, after a lapse of nearly 34 years from the date of presentation of the plaint would indeed take the plaintiffs by surprise.
44. In fact, this issue is no longer res integra. It has been settled by the Supreme Court in Ramji Singh Patel Vs. Gyan Chandra Jaiswal, (2018) 14 SCC 120. In that case, the issue of limitation had not been taken in the written statement, hence, no issue of limitation came to be framed. Consequently, the parties did not lead in any evidence on that aspect. The Trial Court decreed the suit. The First Appellate Court confirmed the decree for injunction granted by the Trial Court. Against the concurrent findings, a second appeal was preferred to the High Court of Judicature at Allahabad. For the first time in the second appeal, the question of limitation was framed and answered against the plaintiff. Against the reversal of the decree, a civil appeal was preferred to the Supreme Court. The Supreme Court, allowing the appeal and reversing the judgment of the Allahabad High Court, held that while it is true, even in the absence of specific issue of limitation, by virtue of Section 3 of the Limitation Act, the Court is empowered to see whether the suit is within limitation or time barred. However, such a plea can be entertained by the Second Appellate Court, only if it is a pure question of law. In case, if it is a mixed question of law and fact, it should not be entertained for the first time by the Second Appellate Court.
45. The plea whether the tenancy determined on the expiry of the period fixed under Ex.A1 or whether the defendant continued to be in possession of the property as a tenant, as asserted by the plaintiff, is certainly a mixed question of fact. The defendant ought to have pleaded that he stopped being a tenant on the expiry of the period fixed under Ex.A1 and thereafter, he was a tenant at sufferance. This plea being absent, I cannot treat it as a pure question of law for it to be applied in the facts of the case. This is more so, when the plaintiff has specifically pleaded that the defendant continued to be in possession in terms of Ex.A1 as a tenant.
46. The view said forth above is a reiteration of the principle laid down by the Hon’ble Mrs.Justice R.Banumathi (as she then was) in Thambusamy Vs. Mani, 2009 SCC OnLine Mad 1774.
47. Moving on, I would now refer to the admitted document under Ex.A1. Both parties have agreed to the execution of the “paguthi” deed on 26.10.1960. The relevant portion of the document for this case is as follows:
48. A reading of these clauses show that the defendant took possession of the property from the plaintiffs for a period of two years at the agreed rent of Rs.42/- per annum. The deed further reads that in default of payment of the rent of Rs.42/- per annum, it will carry an interest of 6% per annum and the defendant would have to pay the principal amount of Rs.42/-, together with interest. Once the period of two years is completed, the defendant would have to hand over possession of the property to the plaintiffs. In case, he does not do so, he shall continue to pay the rent at the same rate as agreed to between the parties. This shows that the parties have agreed that the tenancy would not be determined at the end of two years, but he would continue to pay the rent at the same rate till he hands over the possession.
49. It is a settled position of law that a tenancy is not automatically determined just because the tenant does not pay the rent. The tenancy agreement remains binding until it is ended by the tenant by voluntarily surrendering the property to the landlord or by the landlord issuing notice under Section 106 of the Transfer of Property Act, 1882 to determine the tenancy.
50. The defendant, not having surrendered the possession at the end of two years, continues to be in possession in terms of Ex.A1 only as a tenant, till he hands over possession. His possession carried with it an obligation to pay the yearly rent of Rs.42/- and in default, to pay the same with an interest at the rate of 6% per annum.
51. I am not willing to go into the plea raised by Mr.C.Jagadish that the tenancy has to be treated as an agricultural tenancy and not as a regular tenancy, for the same reason that I am not permitting Ms.Chitra Sampath to raise the plea of limitation. This is because there is no fundamental pleading that the tenancy entered between the plaintiffs and defendant on 26.10.1960 is an agricultural lease.
52. The plea of fraud, mortgage, etc,. having been given up, I need not go into the said issue in the appeal. I will now turn to the authorities cited by Ms.Chitra Sampath.
53. The first of the judgment relied upon by Ms.Chitra Sampath is the case of Bhagabat Patnaik and others Vs. Madhusudan Panda and others, 1964 SCC OnLine Ori 33.
54. It was a case where the landlord had entered into an agreement with the tenant, sometime in 1921, for a period of three years. Thereafter, another agreement was entered in the year 1930 for a further period of three years. The last of the agreement was entered into in the year 1935. The lease provided that if at the end of three years, the defendants did not vacate and hand over possession, they have to pay the enhanced rent at Rs.5/- per month.
55. On May 4, 1944, the landlords gave a notice to the tenant to quit and deliver possession. Thereafter, they filed a suit in the year 1953. The said suit was withdrawn in the year 1957. In 1958, they filed another suit for ejectment. The suit and appeal were dismissed. Against which the second appeal came before the Orissa High Court. The issue that had to be dealt by the Court was whether the suit was barred by time. It seems that a specific issue had been framed on limitation at the instance of the defendant, unlike the present case. The Trial Court as well as the Lower Appellate Court dismissed the suit as barred by limitation. The High Court held that there was no evidence that the defendant had paid rents after 1938. It also found no evidence that the plaintiffs have assented to the defendant continuing in possession. The Court found more than 12 years had passed since the determination of the tenancy on two grounds, one by efflux of time from 1938 and second from 1944, when the first notice to quit had been issued. Hence, it came to the conclusion that the suit is barred under Article 139 of the erstwhile Limitation Act.
56. It is pertinent to point out that in this case, apart from the fact that tenancy had expired in the year 1938, the landlords had issued notice in the year 1944, determining the tenancy. They filed a suit in the year 1958, only after having withdrawn the earlier suit filed in the year 1953. From the time the notice was issued in the year 1944 till the suit had been filed in the year 1958, more than 12 years had expired. It was in those circumstances that the Orissa High Court came to the conclusion that, as the tenancy had been determined on 4th May, 1944, and since the notice had not been waived by the parties, the tenancy had determined in the year 1944 and the suit, having been filed in the year 1958, is barred by time. The Court also pointed out that once the tenancy is determined by a notice to quit, it is not revived by anything short of a new tenancy agreement. Since there is no such fresh tenancy after determination, the Court in this case held that the suit is barred by time. The narration of the facts itself shows this case cannot be compared to the one on hand.
57. The next judgment relied upon by Ms.Chitra Sampath is the case of Mst.Sardaran and others Vs. Sunderlal Baldeo Prasad and others, 1968 SCC OnLine All 262. The first appeal arose before the Allahabad High Court from a suit for possession and damages. The plaintiff pleaded that the suit property belonged to one, Sultan Khan. The said Sultan Khan had sold the property to his daughter Imtiazan, by way of a registered sale deed dated 24.03.1896. After the sale, Sultan Khan took the property on rent for a period of three years on 21.07.1896. The plaintiff alleged that Sultan Khan continued to be in possession till his death, sometime in 1920, and thereafter, his descendants continued in occupation. The plaintiff claimed the defendants were in unlawful possession and had raised new construction by demolishing the old property and thus, sought for possession and for damages.
58. The first defendant alone contested the suit. According to him, the sale deed executed by Sultan Khan in favour of his daughter was a collusive one as it had been so executed in order to defraud his creditors. They pointed out that subsequently, various mortgages had been created which resulted in an auction sale, in which the first defendant had purchased the property and had become the owner thereof.
59. The Trial Court held that, though the daughter of Sultan Khan became the owner of the property in 1896, the very same Sultan Khan had gifted half the house property to his wife in the year 1904 and that he was not competent to do so, having sold it earlier. The Trial Court dismissed the suit holding that it was barred by estoppel and acquiescence and also it was barred by limitation. Three issues were presented before the High Court, namely:
(i)Whether the plaintiff have proved their title to the property?
(ii)Whether the suit was barred by estoppel and acquiescence?
(iii)Whether the suit is barred by limitation?
60. The Court concluded that the sale, on the basis of which the plaintiffs have placed reliance upon, was not genuine or effective and no title vest under the said deed. On the issue of limitation with which we are concerned, the Court analysed whether the 1896 lease executed by Sultan Khan continued undetermined or whether it was determined by efflux of time in 1899. The Court found that the evidence led by the appellant to prove that rent was paid by Sultan Khan is worthless and has been rightly disbelieved by the Trial Court, and accordingly, came to the conclusion that the tenancy stood determined in the year 1899.
61. A reading of this judgment does not disclose as to whether any clause, as found in the case, was present in that case. As pointed out from Ex.A1, the lease, in the present case, was for a period of two years, and after the expiry, the tenant had to continue to pay the said amount, in case, he did not surrender possession of the property. The aforesaid judgment of the Allahabad High Court cannot be applied as a precedent in this case because the very sale deed, which the plaintiff relied upon, is found to be not a valid document.
62. The next judgment relied upon by Ms.Chitra Sampath is R.V.Bhupal Prasad Vs. State of A.P. and others, (1995) 5 SCC 698. The appellant before the Supreme Court was operating a cinema theatre, which had been leased out to him for a period of 20 years. The lease expired on 31.12.1983. The appellant sought renewal of the license under the A.P.Cinemas (Regulation) Rules, 1970. The licensing authority initially renewed the license. The landlady challenged the renewal by way of a writ petition.
63. The learned Single Judge allowed the writ petition and held that the appellant is not in lawful possession of the theatre. Therefore, the grant of renewal was not justified in law. The lessee took the matter on appeal. The Division Bench confirmed the said order and dismissed the appeal, against which a Civil Appeal was filed before the Supreme Court. The Court held there is a difference between lawful possession and juridical possession. It pointed out the provisions of the A.P.Cinemas (Regulation) Rules, 1970 envisages proof of lawful possession of the site for initial grant of licence. Lawful possession must be founded on a subsisting legal right or a lawful relationship between the landlord and tenant “with the landlord consent”.
64. Juridical possession, on the other hand, is a status where a person has lawfully entered the property, continues to be in possession and after the lease period, continues to be in possession, until he was duly ejected by a decree of the Court. This possession has been protected from being termed as “unlawful possession”, for the purpose of claiming statutory rights, like license renewal. The facts disclose that the Supreme Court was concerned with the interpretation of the words “lawful possession” under the A.P.Cinema (Regulation) Rules, 1970.
65. The lease had been extracted in paragraph No.14 of the said judgment. A perusal of the same shows that the lessee was called upon to surrender possession on the expiry of the period, failing which, he would have to pay enhanced rent and damages at the rate of Rs.100/- per day till he is evicted. On the other hand, a perusal of Ex.A1, in the present case, shows that till the possession is handed over, the defendant was called upon to pay the rent at the same rate. Since the case was on the interpretation of the phrase “lawful possession” vis-a-vis “juridical possession”, this judgment does not come to the assistance of the appellant.
66. Next, the judgment in Dr.N.Govindarajulu Vs. K.Subramaniam, 2001 2 L.W.413, arose out of a suit filed by the landlord against his tenant, seeking the relief of permanent injunction restraining him from demolishing any portion of the suit property as the property belonged to him absolutely. To the said suit, the defendant presented a written statement pleading adverse possession on account of the fact though, the earlier proceedings had gone in favour of the landlord, it did not culminate in the possession being handed over to the landlord. The landlord had also filed a suit for declaration of his title and for recovery of vacant possession and mesne profits in C.S.No.72 of 1997. The learned Single Judge took up both the second appeal as well as the suit, where the preliminary issue had been framed to decide, whether the suit is barred by time. The Court concluded that the suit, being one for declaration of title and not simply a suit for recovery of possession, it will be governed under Article 65 of the Limitation Act and not Article 67 of the Limitation Act. Since it was not a suit for eviction but one for declaration of title and recovery of possession, he ordered the preliminary issue of limitation in favour of the plaintiff. (Paragraph No.35).
67. He also pointed out that the mere non-payment of rent alone will not make the continued possession adverse against the landlord. This judgment is a proposition for the point of law that, where the landlord files a suit to declare the title and recovery of possession, the limitation period which should apply is Article 65 and not Article 67. I have concluded on the basis of Ex.A1 that the tenancy did not determine and continued and therefore, this judgment also cannot be applied in the present case.
68. The next judgment relied upon by Ms.Chitra Sampath is Nand Ram (dead) through legal representatives and others Vs. Jagdish Prasad (dead) through legal representatives, (2020) 9 SCC 393. The appellant before the Supreme Court was the plaintiff. They filed a suit for possession, asserting they were the owners of the suit schedule mentioned property. They pleaded that the defendant had taken a lease of a portion of a property, which the plaintiffs are the owners, for a period of 20 years commencing from 23.09.1954 to 22.09.1974, on a payment of Rs.235/- per year. The defendant was in possession of the property for six years. Subsequently, a portion of the property was acquired by the Madhya Pradesh Government. The defendant made a claim, seeking compensation that he has lost his right to retain possession of the land for the unexpired period of fourteen years.
69. The Reference Court answered the issue holding that, as the lease had come to an end, in terms of the agreement, the tenant is not entitled to a share. Subsequently, the landlords determined the tenancy by a notice and called upon the tenant to hand over possession. In the written statement, the defendant asserted that the land in their possession was not a part of the lease deed executed in his favour and that he had been in possession of the property in his own right. The Trial Court decreed the suit. In the appeal, the defendant amended the written statement and took up the plea that the suit is barred by limitation.
70. The First Appellate Court confirmed the decree for eviction, against which a second appeal was preferred to the High Court of Madhya Pradesh. The High Court held that the period of limitation under Article 67 is 12 years and since the tenancy was determined on 23.09.1960, as the tenant had not paid the rent for a period of one year in terms of clause (9) of the lease agreement, a suit filed in the year 1981 was barred by time. The Supreme Court held that the lease period expired only in the year 1974 and the suit filed in the year 1981 is not barred by time. Interpreting Clause 9 of the lease agreement, it held that, non payment of the lease amounts by the lessee gave the right to a lessor to seek possession and that the mere fact that a lessor chooses to exercise that right does not mean the period of lease had come to an end.
71. I am unable to apply the said judgment which arose in the light of these facts to the present case. I have already found that, by virtue of the terms of Ex.A1, the relationship of the landlord and tenant was not determined between the plaintiff and defendant, hence, this judgment too, does not apply to the facts of the case.
72. The last judgment relied upon by Ms.Chitra Sampath is Ponnusamy Vs. Govindan & another, (2022) 2 CTC 770, which dealt with the scope of Section 92 of the Evidence Act. Since that question does not arise in the present case, I am not discussing the same.
73. The learned Senior Counsel has not pressed the other questions of law and thus, they are not answered. As the plea of limitation has not been pleaded in the written statement or the additional written statement and since in this case, limitation is a mixed question of law and fact, the appellant is not entitled to urge the same before this Court. In any event, a reading of Ex.A1 shows the relationship of landlord and tenant continues and hence, the suit is in time.
74. In the light of the above discussions, the Second Appeal stands dismissed. The judgment and decree of the Principal Subordinate Judge, Mayiladuthurai in A.S.No.100 of 1999, dated 20.06.2000 in reversing the judgment and decree of the District Munsif Court, Sirkali, in O.S.No.366 of 1995, dated 29.10.1999, is confirmed. Time for eviction - three months. Consequently, the connected miscellaneous petition is closed. Costs throughout.
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