TMI Blog1996 (9) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. The defendant in his reply dated 27.4.1957 denied his status as lessee and his liability to pay rent. He set up title in himself to the suit property. The plaintiff on his part issued a notice on 10.5.1957 intimating the defendant about her purchase and calling upon to pay rent in future as a lessee. As defendant set up title in himself, the plaintiff was obliged to file the suit as stated above. 2. The suit was resisted on the ground that after the expiry of the registered lease, he surrendered possession of the suit property to the then landlord and thereafter, since it was under nobody's occupation, he entered possession in his own right and not as a lessee and he has not even paid rent to anybody after the expiration of lease. Further it was alleged that he has prescribed title by adverse possession and the plaintiffs suit for recovery of possession was barred by limitation. The Trial Court framed as many as six issues and after examining three witnesses on the side of the plaintiff and five witnesses on the side of the defendant and after perusing 13 documents filed on the side of the plaintiff and 21 documents filed on the side of the defendant, it found that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the defendant-respondent strongly supported the judgment of the High Court mainly on the basis of Article 139 of the old Limitation Act which corresponds to Article 67 of the new Limitation Act, 1963. According to the learned Sr. Counsel, it is an admitted fact that after the expiry of the lease in the year 193S, the defendant never paid any rent for his continued possession in the suit property and in the absence of any exercise of ownership by the landlord for a continuous period of over twelve years, the defendant prescribed title by adverse possession. He also placed reliance on the fact of payment of kists (land revenue) to the suit land by the defendant. He submitted that the High Court has given good reasons for interfering under Section 100 CPC stating that the findings rendered by the Courts below were not based on materials to sustain those findings and, therefore, it must be taken that the findings were rendered by court below based on no evidence. According to the learned counsel on the admitted facts of this case, namely, that neither the lessor nor his legal representative having not claimed any rent continuously for a period of twelve years after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further found that there was no evidence before the Trial Court to show that prior to the date of Exbt. A-6 (reply by defendant) he had never claimed independent title to the suit property and had brought that animus to the notice to the land-lord or the successors in title. The Trial Court also noticed an important fact and observed as follows : In the written statement, it is stated that after the expiry of the lease period mentioned under Exbt. A-3, he had surrendered possession of the land and that he again got the possession of the land in his own independent right and from that date onwards, he has been in possession of the land continuously uninterruptedly as the owner of the land. This claim has been given a go-by by him in his deposition. 14. The Trial Court also found that in as much as the defendant asserted his independent right in the land in himself only under Ext. A-6 dated 27.4.1957, his possession was not adverse to the owners of the land as the suit came to be filed within five years thereafter. 15. The First Appellate Court framed the question for consideration on remand as follows : Whether, having regard to the evidence, oral or documentary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower Appellate Court judgment, we find that the findings rendered by the lower Appellate Court were very well based on materials placed before it and the contrary conclusion reached by the High Court is not sustainable. The lower Appellate Court in its judgment has appreciated all relevant oral and documentary evidence and observed as follows : On the side of the defendant, we have the evidence of D.Ws, 1 to 5. Of them D.W. 1 is the Hand Writing Expert. He was examined with reference to Ex. A-4. His evidence is not relevant for our present limited enquiry. D.W. 3 Ramakrishnan is a resident of Ulli village. D.W. 4 Mahadevan is a resident of Gopampatti, D.W. 5 Karunagaran is a contractor by profession at Gudiyatham These three witnesses claim to own lands near the suit property. They would say that the defendant has been in possession and enjoyment of the suit land for the last 32 to 35 years. But they are not in a position to say as to in what capacity the defendant entered into possession of this property. Their evidence that the defendant is in continuous possession and enjoyment of the suit lands is of no significance because the admitted case of the plaintiff is that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his specific case is that at the end of term under Ex. A-3, he surrendered possession of the suit property and that, thereafter he was in possession of the property in his own right. A third case was put forward during the trial through the mouth of the defendant as D.W. 2, I have already adverted to his evidence in this respect. That would show that even at the end of the second year i.e. in the year 1937 and before the commencement of the third year, he was taken to p.w. 3's father's house by some Sahib, that his father was also present and that he was informed that the lease was cancelled and that he could enjoy the land as he liked. It has to be noted that even according to D.W. 2 this property was worth ₹ 2000 at that time. It is highly unlikely that no prudent man would have given up his right in such a valuable property in favour of another person without any consideration. It is not the case of the defendant that he had done some services to the family of the original owners of this property or that he paid some consideration towards the value of this property and that because of such consideration, he was orally asked by the Sahib to enjoy the land as his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tenancy is determined will be the date from which the period of limitation would begin to run for the purpose of Article 139 of the old Limitation Act. 24. One mode of determining tenancy under Transfer of Property Act is by way of surrender by the tenant. 25. We have seen on facts that an attempt was made by the defendant-respondent that he had surrendered the suit property after the expiry of the lease and thereafter re-entered the suit land and continued in possession in his own right. However, this case was not accepted by the trial court as well as by the appellate court for well-founded reasons as noticed above. That being the position the possession by the defendant on the facts as found by the First Appellate Court, in this case, after the expiry of the lease further continuance was only permissive and will not give cause for prescribing title by adverse possession. Further, for the first time, while replying to the notice by the vendor of the plaintiff, the defendant openly set up a hostile title and the suit having been filed within five years therefrom is not barred by limitation. 26. In the circumstances, we are satisfied that the High Court was not justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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