Full Judgment Text
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PETITIONER:
SHRI AJIT CHOPRA
Vs.
RESPONDENT:
SADHU RAM AND ORS.
DATE OF JUDGMENT: 02/11/1999
BENCH:
M.Jagannadha Rao, M.B.Shah
JUDGMENT:
M. JAGANNADHA RAO,J.
The appellant is the legal representative of the
original plaintiff Sri R.C. Chopra in the suit bearing Suit
No. 25/1 of 1970 on the file of the Senior Sub-Judge, Simla
District, Simla, in the State of Himachal Pradesh. The
present suit was filed by the said Sri R.C. Chopra for
possession and Rs.610/-as past mesne profits. The trial
Court decreed the suit on 30.11.1976 for possession but
refused to pass a decree for mesne profits. The defendant
appealed before the District Court, Simla which dismissed
the appeal by judgment dated 23.7.1977. On further appeal
by the defendant in R.S.A. No.70 of 1977, learned Single
Judge of the High Court of Himachal Pradesh, by judgment
dated 29.10.91 allowed the appeal, set aside the judgments
of the lower Courts and dismissed the suit on a new
question, namely, that the present suit was not maintainable
in view of Section 47 of the Code of Civil Procedure, as it
stood before the 1976 Amendment. The plaintiff died on
22.10.85, during the pendency of the the Second appeal.
This appeal by Special Leave has been preferred by the
plaintiff’s legal representatives.
The property in question belonged originally to one
Dewan Chand Bhatia of Simla and the present plaintiff Sri
R.C. Chopra purchased the same on 18.6.1957 by way of a
registered sale deed. It appears that the plaintiff’s
vendor Sri Bhatia granted a lease in favour of the
respondent - defendant on 10.2.1952. Later, Sri Bhatia
filed an eviction petition on 19.7.1955 under Section 13 of
the East Punjab Urban Rent Restriction Act, 1949 on various
grounds. The respondent denied the relationship of landlord
and tenant. The said contention of the tenant was accepted
and the eviction case was dismissed by the Rent Controller,
Simla on 25.9.1956. The landlord Bhatia’s appeal before the
Appellate Authority succeeded and appeal was allowed on
30.9.57 holding respondent was a tenant and that grounds
existed for his eviction. (It was during the pendency of
that first appeal that the present plaintiff purchased the
property from Sri Bhatia on 18.6.1957, subject to the
decision of the appeal). The respondent-tenant filed a
revision in the High Court on 2.1.1958 contending that he
was not a tenant and seeking stay of dispossession which was
granted on 15.1.1958. Ultimately, the revision was
dismissed by the High Court on 19.9.58 holding that the
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respondent was a tenant. Three months time was granted for
vacation of the premises. The eviction order was not
executed for quite some time but the present suit was filed
by the appellant (purchaser from Mr.Bhatia) within 12 years
from 2.1.1958, the dismissal of the tenant’s revision.
It is the case of Sri R.C.Chopra, the present
plaintiff that as a purchaser from Sri Bhatia, by sale deed
dated 18.6.1957 he tried to evict the respondent but that
the respondent entreated that he be not evicted. The
present plaintiff was in Government service and was at
Bombay and was being transferred from place to place.
Therefore, it is said, the plaintiff agreed afresh to allow
the respondent to continue as his tenant. But, it is said,
the respondent was not paying rent and this led to the
appellant giving a notice on 24.7.1969 to the respondent for
eviction and demanding arrears of rent. There was no reply
from the respondent.
At that stage i.e. after 24.7.1969, admittedly, Sri
R.C.Chopra the present plaintiff filed a fresh eviction
petition against the respondent, under the East Punjab Rent
Restriction Act, 1949. In that eviction case, the
respondent filed a counter contending that he was not a
tenant, and that he was not liable to pay any arrears of
rent and that he had acquired title by adverse possession.
The present suit for possession based on title was
therefore filed on 5.8.1970 and also seeking Rs.610/- as
compensation for use and occupation. The respondent filed
written statement claiming adverse possession on the lines
of his counter in the second eviction petition. The
appellant filed replication on 28.10.1970. The appellant
amended the plaint claiming compensation for a period of 3
years from 3.8.70 to 3.8.73. The trial Court and the first
Appellate Court, decreed eviction and rejected the plea of
adverse possession because the suit filed on 5.8.1970 was
within 12 years from 19.9.1958, on which date the earlier
Rent Control Case between the respondent and the plaintiff’s
vendor, Sri Bhatia was concluded by way of dismissal of the
tenant’s revision. On appeal by the defendant, the High
Court of Himachal Pradesh, raised a new point which was not
raised in the lower courts and held that the present suit
was one, "in reality", in the nature of execution of the
earlier eviction order in the rent control case filed by Mr.
Bhatia before the Rent Controller and that therefore, this
suit stood barred by Section 47 of the Code of Civil
Procedure since all matters concerning the execution,
satisfaction and discharge of the previous suit were to be
agitated in the execution proceedings in the previous
eviction matter and not by a separate suit. In this appeal
before us by Sri R.C.Chopra’s legal representatives, their
learned counsel contended that the point under Section 47 of
the Code of Civil Procedure was not raised in the lower
Courts, nor in the grounds of Second appeal and that the
High Court ought not to have allowed the said question in
the Second Appeal. It was argued that the suit was not "in
reality" one in the nature of execution of the earlier order
of eviction in favour of the plaintiff’s vendor, Sri Bhatia
in the rent control case and was not barred. It was argued
that this suit was based upon a fresh cause of action,
namely, the denial of Mr. Chopra’s in the counter filed in
the second eviction case of 1969. Assuming that the adverse
possession started, it could not have started earlier than
19.9.1958 when the tenant-respondent’s revision in the
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earlier eviction case was dismissed. The present suit, it
is pointed out has been filed within 12 years from 19.9.58
on 5.8.70.
On the other hand, learned counsel for the respondent,
contended that the question of adverse possession or
limitation of 12 years apart, the basic objection was that
the suit was not maintainable in view of Section 47 CPC
inasmuch as this suit was in the nature of execution of the
earlier eviction order obtained by the plaintiff’s vendor,
Sri Bhatia, against the respondent in the rent control case.
The limitation, it was said started from the date of
purchase by the plaintiff sri R.C. Chopra on 18.7.57
because Sri Chopra did not get himself impleaded as a
co-plaintiff in the earlier eviction case filed by Sri
Bhatia. It was contended that in any event, the decree for
eviction in the earlier case became executable even as on
30.9.57 when the Rent Appellate Authority allowed Sri
Bhatia’s appeal and ordered eviction. The plaintiff could
exclude only the period from 15.1.58 to 19.9.58 when the
respondent obtained stay of eviction from the High Court.
Therefore, the present suit was both not maintainable and
was also barred by time. On the above contentions, the
following points arise for consideration: (1) Was the High
Court right in entertaining a new point for consideration in
the Second appeal and treating it as a ’substantial question
of law’ and allowing the appeal on that ground? (2) Did
limitation start against the appellant from 18.7.57 when the
plaintiff purchased from Sri Bhatia or from 3.9.57 when the
Rent Appellate Authority, in the earlier case ordered
eviction in favour of Sri Bhatia? (3) In any event, was the
present suit "in reality" one in the nature of execution of
the first rent control eviction order obtained by the
plaintiff’s vendor Sri Bhatia against the respondent and was
it therefore barred by Section 47 CPC? (4) If the order for
eviction in the rent control case was not executed within
limitation, could a fresh suit lie for eviction and was it
be barred by Section 47 CPC? POINT NO.1 Learned counsel for
the appellant placed reliance on the decision of this Court
in Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and
Ors. [1997 (5) SCC 438] to say that under sub-clause (5) of
Section 100 of the Code of Civil Procedure, as amended in
1976, the Second Appellate Court could not have taken up a
new question of law without stating whether it was a
substantial question of law.
We do not think it necessary to decide this point
because we feel that this appeal can be disposed of in
favour of the appellant on Points 2, 3 and 4, even assuming
that the point raised by the High Court under Section 47,
C.P.C. is a substantial question of law. POINT NO.2:
We shall here assume that after the dismissal of the
revision petition on 19.9.58 of the respondent, there was no
fresh lease between the present plaintiff and the respondent
in 1959 even though it was so contended in the present
plaint.
In our view, during the period of 3 months from
19.9.58 granted by the High Court in the rent control case
to the respondent to vacate, the respondent was in the
position of a licensee as per the permission of the High
Court i.e. upto 19.12.1958 and not as a trespasser. In the
earlier Rent Control case filed by the present plaintiff’s
vendor, Sri Bhatia on the basis of tenancy, even though the
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said relationship was denied by the respondent and the Rent
Controller accepted that plea of the tenant, the Rent
Appellate Authority declared that there was in fact, a
relationship of landlord and tenant between the parties and
ordered eviction on 30.9.57. In our view, the said
declaration as to the nature of the relationship between Sri
Bhatia and the respondent would be effective from the date
of filing of the eviction case on 19.7.55 by Sri Bhatia.
Hence, there could not be any adverse possession from
19.7.1955 merely because the respondent denied his
relationship as tenant from 1955 in the first eviction case.
When the High Court in revision confirmed the said finding
of the Rent Appellate Authority on 19.9.58, the High Court
too put its seal of approval that such a relationship of
landlord and tenant existed from 1955 till the date of
disposal of the revision petition. We are, therefore,
clearly of the view that the respondent was a tenant upto
19.9.1958 when the revision was disposed of and, that
thereafter the respondent was a licensee for a period of 3
months upto 19.12.1958. The adverse possession, if any,
could never have therefore started before 19.12.1958. The
suit filed on 5.8.1970 was in time. It was, however, argued
for the respondent that the relationship of landlord and
tenant stood determined on 30.9.57, once the Rent Appellate
Authority ordered eviction. We are again unable to agree
with this contention. The relationship as tenant continues
throughout the proceedings before the Rent Controller, then
during the pendency of the appeal and till the statutory
revision under the Act is disposed of. It may be that in a
given case the Rent Controller may pass an eviction order
and in another case, the Appellate Authority may do so and
in yet another case the revisional authority may pass the
eviction order. It may also be that, in a particular case,
there is a remand order at some stage and the authority to
which the matter is remanded might come to a conclusion
different from the one it arrived at before remand.
Throughout the proceedings, the relationship as tenant
continues till the eviction order ;is passed by the
appellate or statutory revisional authority. The
relationship does not go on oscillating during the pendency
of the proceedings depending upon whether eviction is
granted or not in between. In that view of the matter, the
contention for the tenant that the relationship of landlord
and tenant came to an end on 30.9.1957 when the landlord’s
appeal was allowed by the appellate authority and that there
was no such relationship during the pendency of the tenant’s
statutory revision till 19.9.1958, must stand rejected.
We finally come to the contention that at any rate the
respondent’s adverse possession started as against Mr.Chopra
(purchaser from Mr. Bhatia) from the date of sale by Sri
Bhatia to the plaintiff on 18.7.57, inasmuch as Sri
R.C.Chopra did not get impleaded in the first eviction case
soon after his purchase. We are unable to agree. Mr.
Chopra’s purchase was subject to the result of the
litigation between the vendor Sri Bhatia and the respondent.
That would mean that the plaintiff’s right to possession of
the property purchased, was by agreement with the vendor,
dependant upon the result of the pending proceedings and the
plaintiff had no immediate right to possession. The
defendant continued to be in the position of a tenant vis-a-
vis the vendor and vis-a-vis the premises even after the
plaintiff’s purchase. If the respondent was a tenant of the
premises till the revision was disposed of, he could not
claim that he was in adverse possession against Mr. Bhatia
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or against Mr. Bhatia’s vendee when the latter had no right
to immediate physical possession. Therefore, this
contention of the respondent, cannot be accepted. Thus,
even if the respondents adverse possession started on
19.12.1958, when the three months time granted by the High
Court expired, or even if it be that the adverse possession
started on 19.9.58 when the revision was rejected, the suit
for possession filed on 5.8.70 was well within 12 years.
The adverse possession did not start earlier. Point 2 is
decided in favour of the appellant. POINT 3: We next come
to the question whether the suit was not maintainable under
section 47 CPC as held by the High Court for the first time
in Second Appeal.
The suit having been filed on 5.8.1970, before the
Amendment of the Civil Procedure Code under Central Act 54
of 1976, we go by the unamended section 47. That section
read as follows:
"47. Question to be determined by the Court executing
decree:-
(1) All questions arising between the parties to the
suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the court
executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to
limitation or jurisdiction, treat a proceeding under this
section as a suit or a suit as a proceeding and may, if
necessary, order payment of any additional court fees.
(3) Where a question arises as to whether any person
is or is not the representative of a party, such question
shall, for the purposes of this section, be determined by
the court.
Explanation: For the purposes of this section, a
plaintiff whose suit has been dismissed and a defendant
against whom a suit has been dismissed, are parties to the
suit."
It will be noticed that under sub-clause (1), all
questions arising between the parties to the suit in which
the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the
decree, shall have to be determined by the Court executing
the decree and not by a separate suit.
The High Court observed: "Reading of the entire
plaint would show that plaintiff claimed a decree for
possession by "virtually" praying to enforce the order of
ejectment and on the basis of the plea of defendant being a
tenant in the premises by virtue of a fresh contract of
tenancy". This view, in our opinion, cannot be accepted.
The plaint states in para 8 as follows:
"That the defendant did not care to pay any rent of
the said quarters to the plaintiff taking undue advantage of
the plaintiff’s absence from Simla because the plaintiff was
in Government service in Maharashtra state. The plaintiff
initiated proceedings for ejectment of the defendant from
the said quarters under section 13 of the East Punjab Act
No.III of 1949, on the ground of non-payment of rent in
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respect of the said quarters before the Learned Rent
Controller. Simla and in the said proceedings the defendant
has set up a false and frivolous plea of ownership of the
said quarters by adverse possession. The plaintiff has,
therefore, thought it advisable to file a suit for
possession of the said quarters by ejectment of the
defendant therefrom, whose occupation thereof till 13-11-
1958 is established as a tenant therein by judicial findings
which are binding on the defendant." The defendant admitted
in para 8 of his written statement in the present suit as
follows:
"para 8 of the plaint is also emphatically denied
except the pendency of the ejectment proceedings and the
reply submitted thereto by the replying defendant"
From the aforesaid averments in para 8 of the plaint,
it is obvious that the plaintiff referred to the fresh
eviction case filed by Mr. Chopra in 1969 the present
plaintiff, after the legal notice dated 24.7.1969. It was
in that fresh rent control case that the respondent filed a
counter stating that he was the owner of these four quarters
and that he had prescribed title by adverse possession.
This plea of the plaintiff was indeed admitted in para 8 of
the present written statement. Thus, the present suit is
not one for execution of the eviction order passed in the
first rent control case. In our view, the High Court was,
therefore, wrong in treating the present suit as one
‘virtually’ for execution of the order of eviction passed in
the earlier rent control case. Hence the ban under section
47 cannot apply. Point 3 is decided in favour of the
appellant. Point 4: This point is crucial to the case.
Now, if a suit for possession is decreed and the
decree-holder gets possession and thereafter there is a
fresh dispossession, there is no difficulty in holding that
a fresh suit is maintainable for ejectment, because the
fresh trespass creates a fresh cause of action. This
principle is stated in Dhanraj Singh and Ors. Vs. Mt.
Lakrani Kuar (AIR 1916 All. 163) referred to by the learned
Single Judge in the judgment under appeal. But that is not
the only situation in which it can be said there will be a
fresh cause of action. There can be other situations where
a fresh cause of action arises.
Where an earlier decree based on title for ejectment
is not executed in time but a fresh suit is however filed on
the same basis against the same defendant for ejectment
relying on the earlier judgment, it has been held that a
second suit does not lie. This is based on the principle
that no second suit lies merely on the basis of an earlier
judgment if the time for execution of the earlier decree has
become barred. The cases relied up by the High Court in
Ramanand and Ors. Vs. Jai Ram and Ors. ( AIR 1921 All.
369), Sovani Jena Vs. Bhima Ray (AIR 1922 Pat. 407), Mal
Singh Bika Singh and Ors. Vs. Mohinder Singh Mehar Singh (
AIR 1970 P & H 509) belong to this category. But, in the
present case, they are distinguishable. The plaint before
us is not based on the decree obtained in the first eviction
case filed under the Rent Control law. We may add that
Chhagan Lal Vs. The Indian Iron and Steel Co. and Ors.
(AIR 1979 Cal.160) also belongs to this category.
We shall next turn to cases more directly in point.
These are where the earlier suit is based on the
relationship of landlord and tenant and the latter suit is
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based on title. In Kutti Ali Vs. Chindan and Anr. (1900
ILR (23) Mad.629), the earlier suit of 1890 was brought by
the landlord against the defendant, on the basis of a lease.
The decree was allowed to become time barred as no execution
petition was filed within 3 years. A fresh suit was filed
in 1898 on the basis of title for eviction The Division
Bench held: "The defendants being tenants in 1890 cannot
have acquired a prescriptive title in 1898 when this suit
was brought. The plaintiff is, therefore, entitled to
recover the land upon his title independently of any letting
by him". Omission to sue on title in the earlier suit was
not ( constructive ) res judicata.
This judgment, in Kutti Ali unfortunately, suffered
several ups and downs. In a Full Bench of five Judges in
Vedapuratti Vs. Vallabha Valiya Raja and Ors. ( 1902 ILR
(25) Mad 300) the above case was held to be wrongly decided.
In that case the first suit for redemption of a mortgage was
decreed but execution got barred by time and a second suit
for redemption was held not maintainable. Then came
Mayankutti Vs. Kunhammad and Ors. ( 1918 ILR (41) Mad.641)
( a case relied upon in the judgment of the High Court now
in appeal before us). There the plaintiff’s father had sued
the defendant on a lease deed and obtained a decree for
possession directing payment of compensation under the
Malabar Compensation for Tenants Improvements Act. The
execution got barred by time and then a fresh suit was filed
on the genuine title. The suit was held barred following
the Full Bench in Vedapuratti and dissenting from Kutti Ali.
One peculiar feature of this case which makes it
distinguishable is that the Malabar Act Section 5 stated
that, notwithstanding, the determination of the tenancy, the
tenant was entitled to remain in possession until evicted in
execution of the decree and Section 6(4) stated that every
matter arising under Section 3 was to be deemed to relate to
execution. That would mean the statutory tenancy continued
even after the eviction order till the compensation for
improvement was paid to the tenant.
But after Raghunath Singh and Ors. Vs. Hansraj
Kunwar and Ors. ( 1934 ILR (56) All. 561) was decided by
the Privy Council, Vedapuratti stood impliedly overruled.
Their Lordships held in that case that when execution of a
decree for redemption was allowed to get barred, a fresh
suit would lie. The important principle laid down by Lord
Russell of Killowen in regard to the right to redeem was
that the "right was not barred by res judicata". It meant
that the Full Bench case in Vedapuratti which overruled
Kutti Ali was no longer good law. This position became
clear when a similar question arose before a Full Bench of
the Madras High Court in Viroopakshan Vs. Chambu Nayar and
Ors. (1937 ILR Mad. 545). That was again a case of a
second suit for redemption, the execution in the first suit
having become barred. Varadachariar J ( as he then was ),
after referring to the decision of the Privy council
observed that the Full Bench decision in Vedapuratti was no
longer good law and a second suit lay "unless .......the
right of redemption has been extinguished in one of the
modes contemplated by the statutes and that the mere fact
that a decree for redemption obtained on a former occasion
has not been executed will not prevent the mortgagor from
maintaining a subsequent suit for redemption". The result
was that with the overruling of Vedapuratti, the decision in
Kutti Ali revived. To the extent Mayankutti Vs. Kunhammad
( 1917 ILR (41) Mad 641) ( which was relied upon by the High
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Court in the judgment under appeal before us) dissented from
Kutti Ali, the said dissent would therefore no longer hold
good. That is how, Kutti Ali still remains and governs the
situation on the facts before us. The facts before us are
again similar to those in Amina Vs. Ahmad ( 1949 (1) MLJ
465). That decision is similar to Kutti Ali and the said
ruling was followed. There the first suit was for eviction
solely based on tenancy and the execution was allowed to
become time bared as in the case before us. The second suit
for eviction based on title was held maintainable and not
barred. Satyanarayana Rao, J. observed:
"On the principle of the decision in Kutti Ali vs.
Chindan, I think that the second suit based on title is not
barred.....A suit based on tenancy is very narrow in its
scope and it is unnecessary very often for the plaintiff
landlord to plead his title; it is enough for him in such a
suit to prove the lease and the tenancy and that it was
validly terminated."
In that case too, the fresh suit was filed within 12
years from the date fixed in the earlier compromise decree.
The possession during the period granted under the
compromise was treated as permissive. A similar situation
arose again in Madhavan Variar vs. Chathu Nambiar [1950 (2)
MLJ 501] before Satyanarayana Rao and Viswanatha Sastri, JJ.
They observed (p.504) that "as the cause of action in the
present suit was different from the cause of action in the
earlier suit, the decision in Mayan Kutti vs. Kunhammad,
had no application". In our view, the decision in Kutti Ali
and in Amina are directly in point and are correctly
decided. Both relate to an earlier suit based on a lease
when the execution of the decree was time barred and the
second suit was based on title. The second suit was held
neither barred by section 47 CPC nor by section 11 CPC. So
far as mortgage cases are concerned, the position stood
settled long back by the decision of the Privy Council in
Raghunath Singh’s case as explained in the Full Bench in
Viroopakshan. In fact, this Court approved the Privy
Council judgment in Raghunath Singh and held that a second
suit for redemption was maintainable even if the earlier
decree for redemption stood barred by limitation. (see
Mhadaagonda Ramgonda Patil and Ors. Vs. Shripal Balwant
Rainade and Ors. [1988 (3) SCC 298], Maganlal Vs. Jaiswal
Industries, Neemach and Ors. [1989 (4) SCC 344] and Harbans
Singh and Anr. Vs. Guran Ditta Singh and Anr. [1991 (2)
SCC 523]. We, accordingly hold on the above line of cases
that the present suit is not barred by Section 11 or Section
47 of the Code of Civil Procedure.
We have, in the above discussion, covered all the
cases referred to by the High Court in the judgment under
appeal except one, namely, Dinu Yesu Desai Vs. Shripad Baji
Carware ( AIR 1919 Bom.34). That case, in our view, is
clearly distinguishable because in the first decree for
redemption which stood barred by time for execution
purposes, it was also stated that the plaintiff’s "right to
redeem shall be for ever barred". In fact, in that case, on
that ground the High Court distinguished Ramji Vs.
Pandharinath (1918 ILR (43) Bom 334 (SB)) where there was no
such clause. In Ramji, second suit for redemption was held
maintainable as in the Privy Council case and Vedapuratti of
the Madras High Court was clearly dissented. Hence Dinu
Yesu Desai is clearly distinguishable and does not apply.
In principle, if the second suit in redemption cases is
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maintainable "unless the right to redeem itself stood
barred", on the same parity of reasoning, the second suit on
title (where the earlier decree on lease stood barred) would
be maintainable "unless the title itself stood barred".
As stated under Point 2, the second suit on title was
filed on 5.8.70 within 12 years of the commencement of the
adverse possession on 19.12.58 i.e. before 19.12.70. The
High Court was in error in holding the suit was not
maintainable. The result is a judgment and decree, which
was passed in a previous suit under the Rent Control Act by
which it was held that respondent was tenant and that he was
required to vacate the premises on or before 19.12.1958,
would not bar a fresh suit for recovery of possession from a
tenant. Reason being that the tenant has not acquired title
over the property by adverse possession. It is true that
the appellant could have executed the decree passed in the
said suit. He had not executed the same on the alleged
ground that there was a fresh agreement of tenancy.
Whatever may be the position, after lapse of three years it
was not open to the appellant to file an application for
executing the said decree under the Limitation Act, 1908.
Still there is no bar under the Rent Act or under the
Limitation Act, 1908. Still there is no bar under the Rent
Act or under the Code of Civil Procedure for filing a suit
for recovery of possession from the tenant, who had failed
to deliver the possession on the basis of a decree passed
against him. Unless, the defendant - tenant establishes
that he has become owner of the suit property by adverse
possession, the suit filed by the owner on the basis of his
title cannot be dismissed despite the fact that application
for the execution of the decree passed under the Rent Act
was barred after lapse of three years. The title of the
plaintiff over the suit property was not extinguished (i) by
the act of the parties including adverse possession, (ii) by
the decree of the Court or (iii) by not executing the decree
which was passed in a previous suit. If there is any
agreement between the parties after passing of the decree,
permitting the tenant to continue in the premises, he may
either be a tenant, licensee or a trespasser. Presuming
that no fresh tenancy was created or license was granted
then also respondent has failed to acquire title by adverse
possession on the date of the suit i.e. 5.8.1970, because
as per the decree he was entitled to occupy the premises up
to 19.12.1958 as a tenant. By lapse of time, plaintiff has
lost right to execute the previous decree as it became
time-barred but has not lost the title. Unless the title is
extinguished, second suit by the owner if filed within
period of limitation is not barred.
We allow the appeal and restore the decree of the
eviction as granted by the trial Court and as affirmed by
the first appellate Court. There will be no order as to
costs in this appeal.