Bombay High Court
Ichalal Jagmohandas vs Nago Sina Patim on 5 August, 1920
Equivalent citations: (1921)23BOMLR60, 60IND. CAS.589, AIR 1921 BOMBAY 462
JUDGMENT Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover joint possession of the plaint land. Plaintiff's father purchased a joint half share in Survey No. 165, Pot No. 1, with other property from Bhiku Dharma and Anu Bhiku on the 22nd of August 1903. On the same day Bhiku and Anu passed a lease in favour of Jagmohandas in respect of the property mentioned in Exhibit 19 for a term of one year and agreed to pay the rent of Rs. 42. The term of the rent-note expired on the 22nd of August 1904. On the 5th of March 1913, Bhiku Dharma, Hari Dharma, Anu Bhiku and Sakharam Hari, sold the entire land, Survey No. 165, Pot No. 1, to the defendant. This suit was filed on the 28th of August 1917. It has been dismissed in both Courts on the ground that Article 139 of the Indian Limitation Act applies and that when the term of the rent-note expired on the 22nd of August 1904, Bhiku and Anu held adversely to the landlord, and there was no evidence in the case from which a fresh tenancy could be inferred.
2. The facts of this case are entirely different from the facts in Chandri v. Daji Bhau (1900) I.L.R. 24 Bom. 504; 2 Bom. L.R. 491. It must be remembered that in this case the tenants were the vendors who were tenants-in-common with two other persons of the plaint land and the fact that they held over would not in any way affect the plaintiffs right as purchaser under the sale-deed to sue for partition against his co-tenants-in-common. What might have happened if he had let a portion of the land which belonged to the tenancy-in-common To an outsider who held over is a question which does not arise. In this case the plaintiff stood in the shoes of Bhiku and Anu who had a right of partition against the other members Hari and Sakharam, and it would depend upon the terms of the partition what portion of the tenancy-in-common would go Jo him on division. We think the case clearly comes under Article 144 and not under Article 139.
3. The appeal must be allowed and the plaintiff's suit decreed with costs.
Fawcett, J.
4. I agree. In this suit the plaintiff stated his claim to recover joint possession of the plaint property not as a landlord, but as an owner, and although he does mention that the land was leased to the defendant's predecessor-in-title, yet his claim was clearly brought on the basis of his title as owner. Accordingly, although the tenancy may have determined, I do not think that the case can properly be held to fall under Article 139; and there being no other Article applicable, it falls under the general Article 144. That being so, the grounds on which the lower Courts have held the suit time-barred are, in my opinion, wrong.