Abdul Rahman Thangal Sahib & Anr. Vs. Syed Sahib (D) By Lrs.
EmailAppeal: Civil Appeal No. 3200 of 1993
Petitioner: Abdul Rahman Thangal Sahib & Anr.
Respondent: Syed Sahib (D) By Lrs.
Apeal: Civil Appeal No. 3200 of 1993
Judges: V.N. Khare & R.C. Lahoti, JJ.
Date of Judgment: Dec 11, 2001
Head Note:
LIMITATION
Limitation Act, 1963
Articles 65 and 67 – Tamil Nadu Buildings (Lease and Rent Control Act) 1960 – Limitation – Suit for eviction of tenant – Property under occupation of tenant purchased by appellants – Appellants serving notice on the tenant on 30.5.1983 terminating the tenancy – Respondent claiming acquisition of title by adverse possession – Rent controller dismissing the eviction petition to be not maintainable and directing the parties to get the title declared in civil court – Appellants, thereafter, filing suit for declara-tion of title and recovery of possession – Suit dismissed by trial court but first appellate court decreeing the suit – On appeal, High Court restoring the order of trial court and holding the suit to be barred by limitation. Held, since the period of limitation would run only from the date of receipt of reply to the notice dated 30.5.1983, the suit was well within time and the view taken by the High Court was erroneous.
Held:
Earlier the appellants claiming themselves as landlords and the respondent as the tenant sought eviction of the respondent on the ground of default in payment of rent before the rent controller. There, the respondent denied the relationship of landlord and tenant between the parties and claimed title over of the property by adverse possession. The respondent having taken a definite stand before the rent controller that he has acquired title over the property by adverse possession, it was not open to him to shift from the said stand and take plea before the civil court that he is a tenant of the premises in dispute. Admittedly, in reply to the notice dated 30/5/83, the respondent for the first time asserted his title to the property by adverse possession and, therefore, the period of 12 years would run from the date of receipt of reply to the notice dated 30/5/83. If the period of limitation is counted from the date, the suit was well within time. (Para 6)
JUDGEMENT:
O R D E R
1. Cause shown is sufficient.
2. Delay in filing substitution application is accordingly con-doned.
3. Substitution application is allowed. Let the legal heirs of deceased appellant no. 2 be brought on record.
4. This appeal arises against the judgment of Madras High Court whereby, the second appeal preferred by defendant-respondent no. 2 was allowed.
5. The property in dispute is a house situate at Kadayanallur. It originally belonged to one Mydeen Sahib. After the death of the original owner, it devolved on his wife Nagoor Bivi and his grandson Nagoor Sahib. The original owner, on 4/10/1954 let out the said premises to the defendant-respondent on a rent at the rate of Re.1/- per month. It is alleged that a registered rent deed was also executed between the owner and the defendant-respondent. Subsequently, on 13/6/81, the plaintiffs-appellants herein purchased the said suit property from the heirs of the original owner. On 30/5/83, the appellants served a notice on the defendant-respondent terminating the tenancy of the premises in dispute. The defendant-respondent sent a reply to the said notice, wherein he claimed to have acquired title over the prop-erty in dispute by adverse possession. Under such circumstances, appellants filed an eviction petition before the rent controller under Tamil Nadu Buildings (Lease and Rent Control Act), 1960 (hereinafter referred to as ‘the Act’) seeking eviction of the respondent on the ground that he committed default in payment of rent. In the said petition, the defendant-respondent filed a written statement wherein he denied the title of the appellants and claimed himself to be the owner of the property by adverse possession. Before the rent controller, the respondent prayed that the petition being non-maintainable deserves dismissal. After hearing the parties, the rent controller was of the view that since the relationship of the landlord and the tenant has not been established between the parties, the appellants may get their title declared in the civil court. Consequently, the peti-tion filed by the appellants was dismissed as non-maintainable. It is under the aforesaid circumstances, the appellants brought a suit for declaration of their title as well as for recovery of possession of the premises in dispute and mesne profits. In the said suit , the respondent filed a written statement wherein he reiterated that he has acquired title to the property by adverse possession and he is not a tenant of the premises. The trial court was of the view that the registered rent deed executed between the owner and the respondent was not acted upon and, therefore, the status of the respondent was that of a trespasser. Consequently, the defendant-respondent had acquired title by adverse possession. In that view of the matter, the suit was dismissed . The appellant thereafter filed an appeal before the first appellate court. The first appellate court allowed the appeal. As a result thereof, the suit stood decreed. Aggrieved, the respondent preferred a second appeal before the High Court. The High Court allowed the second appeal after setting aside the judgment of the first appellate court and restored the decree of the trial court. It is against the said judgment of the High Court, the appellants have preferred this appeal.
6. Learned counsel for the appellants, urged that the view taken by the High Court that since Article 67 of the Limitation Act is applicable in the present case and, therefore, suit brought by the appellant was barred by time is erroneous. According to learned counsel for the appellants, it is Article 65 which is applicable in the present case. However, learned counsel appear-ing for the respondent argued that since the plaintiff has brought the suit as a landlord against the respondent tenant and, therefore, the High Court has rightly dismissed the plaintiff’s suit as barred by time. We have perused the record and we are of the view that in the present case, Article 65 of the Limitation Act which is applicable and not Article 67 of the Limitation Act. It may be stated that earlier the appellants claiming themselves as landlords and the respondent as the tenant sought eviction of the respondent on the ground of default in payment of rent before the rent controller. There, the respondent denied the relation-ship of landlord and tenant between the parties and claimed title over the property by adverse possession. The respondent having taken a definite stand before the rent controller that he has acquired title over the property by adverse possession, it was not open to him to shift from the said stand and take plea before the civil court that he is a tenant of the premises in dispute. Admittedly, in reply to the notice dated 30/5/83, the respondent for the first time asserted his title to the property by adverse possession and, therefore, the period of 12 years would run from the date of receipt of reply to the notice dated 30/5/83. If the period of limitation is counted from the date, the suit was well within time.
7. We are, therefore, of the opinion that the view taken by the High Court that the suit brought by the appellants was barred by limitation was erroneous.
8. For the aforesaid reasons, this appeal deserves to be allowed. Consequently, the judgment under challenge is set aside and the order of the first appellate court is restored. The appeal is allowed. There shall be no order as to costs.
1. Cause shown is sufficient.
2. Delay in filing substitution application is accordingly con-doned.
3. Substitution application is allowed. Let the legal heirs of deceased appellant no. 2 be brought on record.
4. This appeal arises against the judgment of Madras High Court whereby, the second appeal preferred by defendant-respondent no. 2 was allowed.
5. The property in dispute is a house situate at Kadayanallur. It originally belonged to one Mydeen Sahib. After the death of the original owner, it devolved on his wife Nagoor Bivi and his grandson Nagoor Sahib. The original owner, on 4/10/1954 let out the said premises to the defendant-respondent on a rent at the rate of Re.1/- per month. It is alleged that a registered rent deed was also executed between the owner and the defendant-respondent. Subsequently, on 13/6/81, the plaintiffs-appellants herein purchased the said suit property from the heirs of the original owner. On 30/5/83, the appellants served a notice on the defendant-respondent terminating the tenancy of the premises in dispute. The defendant-respondent sent a reply to the said notice, wherein he claimed to have acquired title over the prop-erty in dispute by adverse possession. Under such circumstances, appellants filed an eviction petition before the rent controller under Tamil Nadu Buildings (Lease and Rent Control Act), 1960 (hereinafter referred to as ‘the Act’) seeking eviction of the respondent on the ground that he committed default in payment of rent. In the said petition, the defendant-respondent filed a written statement wherein he denied the title of the appellants and claimed himself to be the owner of the property by adverse possession. Before the rent controller, the respondent prayed that the petition being non-maintainable deserves dismissal. After hearing the parties, the rent controller was of the view that since the relationship of the landlord and the tenant has not been established between the parties, the appellants may get their title declared in the civil court. Consequently, the peti-tion filed by the appellants was dismissed as non-maintainable. It is under the aforesaid circumstances, the appellants brought a suit for declaration of their title as well as for recovery of possession of the premises in dispute and mesne profits. In the said suit , the respondent filed a written statement wherein he reiterated that he has acquired title to the property by adverse possession and he is not a tenant of the premises. The trial court was of the view that the registered rent deed executed between the owner and the respondent was not acted upon and, therefore, the status of the respondent was that of a trespasser. Consequently, the defendant-respondent had acquired title by adverse possession. In that view of the matter, the suit was dismissed . The appellant thereafter filed an appeal before the first appellate court. The first appellate court allowed the appeal. As a result thereof, the suit stood decreed. Aggrieved, the respondent preferred a second appeal before the High Court. The High Court allowed the second appeal after setting aside the judgment of the first appellate court and restored the decree of the trial court. It is against the said judgment of the High Court, the appellants have preferred this appeal.
6. Learned counsel for the appellants, urged that the view taken by the High Court that since Article 67 of the Limitation Act is applicable in the present case and, therefore, suit brought by the appellant was barred by time is erroneous. According to learned counsel for the appellants, it is Article 65 which is applicable in the present case. However, learned counsel appear-ing for the respondent argued that since the plaintiff has brought the suit as a landlord against the respondent tenant and, therefore, the High Court has rightly dismissed the plaintiff’s suit as barred by time. We have perused the record and we are of the view that in the present case, Article 65 of the Limitation Act which is applicable and not Article 67 of the Limitation Act. It may be stated that earlier the appellants claiming themselves as landlords and the respondent as the tenant sought eviction of the respondent on the ground of default in payment of rent before the rent controller. There, the respondent denied the relation-ship of landlord and tenant between the parties and claimed title over the property by adverse possession. The respondent having taken a definite stand before the rent controller that he has acquired title over the property by adverse possession, it was not open to him to shift from the said stand and take plea before the civil court that he is a tenant of the premises in dispute. Admittedly, in reply to the notice dated 30/5/83, the respondent for the first time asserted his title to the property by adverse possession and, therefore, the period of 12 years would run from the date of receipt of reply to the notice dated 30/5/83. If the period of limitation is counted from the date, the suit was well within time.
7. We are, therefore, of the opinion that the view taken by the High Court that the suit brought by the appellants was barred by limitation was erroneous.
8. For the aforesaid reasons, this appeal deserves to be allowed. Consequently, the judgment under challenge is set aside and the order of the first appellate court is restored. The appeal is allowed. There shall be no order as to costs.
