1990 PLP 83 (MLD)

(3) Whether the suit is incompetent in the present form? OPD: (4) Whether the old agreement has been cancelled and a new agreement was made between the parties in previous Suit No.478/288 decided on 31‑3‑1959, if so, its effect? OPD. (5) Whether there exists relationship of landlords and tenants between the parties. (6) Whether the suit is properly valued for purposes of court‑fee and jurisdiction? OPP. (7) Whether no execution application was made in time regarding the decision dated 31‑3‑1959, if so, its effect? OPD. (8) Whether the suit is not maintainable under section 47, C.P.C.? OPD. (9) Whether the plaintiffs are estopped from suing? OPD. (10) Whether the defendants have become the owners of the suit property? OPD. (11) Whether the defendants Nos.l and 2 have made `Abadi' over the suit land to the extent of Rs.25,00,000 (Rupees twenty‑five lakhs) and they are entitled to it? OPD. (12) Whether the plaintiffs have waived their rights in the suit property under Article 138‑139 of the Limitation Act? OPD. (13) Whether the defendants No s,3 to 8 are the tenants of the defendants Nos.1 and 2, if so, its effect? OPD. (14) Whether the plaintiffs are entitled to a decree of ejectment regarding the suit property on payment of Rs.46,790? OPP. (15) Whether in the alternative the plaintiffs are entitled to a decree of ejectment by demolition of the Abadi standing on the suit property? OPP. (16) Relief. After recording evidence as produced by the parties the learned Senior Civil Judge decided Issues Nos.2, 5, 14 and 15 in favour of the respondents herein and the other issues against the petitioners herein and granted a decree in favour of the former by judgment dated 9‑5‑1985. The appeal fled by the petitioners herein was dismissed by the learned District Judge, Malakand on 8‑12‑1986. Still feeling aggrieved the defendants Nos.l and 2 of the suit filed in this Court the revision petition in hand.

2. I have heard learned counsel for the parties at length. who also led me through the record of the case.

3. The admitted facts of the litigation between the parties are that the suit property belonged to the respondents herein and it was leased out by them to the petitioners by lease deed executed on 19‑3‑1953, that the lease was to commence from 1‑1‑1954 and it was for a period of twenty years that subsequently the respondents filed a suit on 25‑10‑1956 against the petitioners herein in the Court of Political Agent, Malakand which was decreed in their favour ‑on 31‑3‑1959 and they were held entitled to get possession of the suit property on payment of Rs.55,990 as compensation for the superstructure, that the respondents never executed the decree and neither paid the compensation for the superstructure to, nor obtained possession of the suit property, from the petitioners, that the latter also never paid any rent of the suit property to the respondents after 31‑3‑1959, that the respondents again brought the suit for ejectment of the petitioners in the year 1978, out of which the present revision petition has arisen, that they admitted that the tenants,' wino were defendants Nos.l and 2 in the suit and are petitioners herein, had not paid any lease money after the aforesaid judgment of the Political Agent dated 31‑3‑1959 and that they had also never demanded any rent from them, that it was also admitted by P.W.1 Ghulam Akbar Khan in his testimony that the tenants had raised Pakka construction over the suit property after the decision of the Political Agent and had also not paid any lease money to the respondents.

4. The respondents also failed to prove or bring on, record any evidence to show that the petitioners had either paid any rent of the suit property to them after the aforesaid judgment of, the Political Agent or had entered into any fresh agreement of tenancy with the petitioner.

5. It shall thus be seen that after the judgment of the learned Political agent made on 31‑3‑1959 the petitioners were holding the property adversely to the interest of the respondents. The latter did not obtain possession of the suit property from the petitioners in pursuance of the decree granted in their favour. The relationship of owner/landlord and tenant between the parties came to an end on 31‑3‑1959 and the possession of the petitioners over the suit property thereafter became unauthorized. Since the respondents had already obtained a decree for ejectment of the petitioners from the suit property they could not rile a fresh suit for the same purpose against the former without proving that a fresh lease had come into existence between the parties after the judgment dated 31‑3‑1959. When an order of ejectment from a property is made against a tenant, his possession over the same thereafter becomes hostile and unauthorized and if the possession is not obtained by the owner or the landlord from the tenant within twelve years of the date of decree, then he loses his right to execute the decree and the tenant can set up a claim of adverse possession. In such a situation the tenant cannot be held to be holding over. This plea can only be set up when any period is specified in a lease deed and it expires but still the tenant continues in occupation of the property and regularly pays rent to the owner or landlord and the same is accepted by the latter. However, when a decree for ejectment of a tenant is made then it has to be executed or a fresh agreement of lease has to be entered into between the parties or there should be cogent evidence of tender of rent by the tenant and acceptance of the same by the owner or landlord, only then the plea of fresh lease will be acceptable and the question of unauthorized occupation of the tenant would not arise. However, no such evidence was brought on record by the respondents.

6. Under the provisions of Article 139 of the First Schedule to the Limitation Act, 1908 a landlord has to recover possession from a tenant within twelve years from the date the tenancy is determined. Admittedly the tenancy of the petitioners over the suit property was determined on 31‑3‑1959 and under the provisions of the aforesaid Article 139, the respondents had to get possession of the suit land within twelve years of that date. However, they filed the suit in hand on 4‑10‑1978, long after the expiry of the period of twelve years. Obviously their suit had become time-barred under Article 139 of the First Schedule to `the Limitation Act and their right to such property had also extinguished under section 2S thereof and the petitioners were competent to set up a plea of adverse possession and adverse title. The respondents were also estopped by their own conduct.

7. It was contended by the learned counsel for the respondents that under section 116 of the Evidence Act (now Article 114 of the Qanun‑e‑Shahadat, 1984) the petitioners being tenants of the immovable property could not deny the title of the respondents thereupon as the tenancy was continuing and in this connection he has cited the case of Mst. Bilas Kunwar v. Desraj Ranjit Singh and others AIR 1915 Privy Council 96 wherein it was held that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. I am afraid I cannot accept this contention for the simple reason that after the judgment of the learned Political Agent made on 31‑3‑1959 the lease had ceased to exist and thereafter the petitioners were neither lessee nor tenants holding over.

8. In the case of Purshottam v. Vishnu A I R 1927 Bom. 650 it was held that landlord's remedy to recover possession of his property from his tenant becomes barred by limitation where such tenant continues in possession of such property after the termination of the lease for the full term of the statutory period without payment of rent and without any express or implied agreement between him and the landlord that the tenancy was to continue. In the case of Banwari Lai v. Mt. Hussaini A I R 1939 Lah. 455 it was held that after the period of lease has expired, the relationship of landlord and tenant ceases and the tenant becomes a trespasser by the operation of sub‑clause (a) of section 111 of the Transfer of Property Act. In the case of Banwari Lai v. Mt. Hussaini and another A I R 1940 Lah. 410, it was held that where in case of a tenancy for a fixed term the lessee remains in possession after the expiry of the period of lease without paying rent and there is nothing to show that the lessor assented to the lessee continuing in possession, the suit by lessor for possession beyond twelve years from the expiry of period of lease is time-barred under Article 139.

9. Both the learned lower Courts failed to appreciate the correct facts and circumstances of the matter in dispute between the parties. They overlooked the circumstance that the plaintiffs of the suit had failed to prove afresh lease or payment of any lease money after the decree made by the learned Political Agent on 31‑3‑1959 and the owners also did not execute the said decree till the time they brought the suit in hand on 4‑10‑1978. I, therefore, hold that the petitioners were able to prove the bar of limitation under Article 139 of the First Schedule to, and the plea of adverse possession under section 28 of the Limitation Act while on the contrary the respondents failed to prove the plea of estoppel of the tenants under section 116 of the Evidence Act (Article 114 of the Qanun‑e‑Shahadat, 1984). I will, therefore, accept this revision petition, set aside the findings of the learned Senior Civil Judge and those of the learned District Judge on Issues Nos.l, 2, 4, 5, 7, 10, 12, 13, 14 and 15 and decide the said issues in favour of the petitioners. Consequently I will set aside both the impugned judgments of the learned Senior Civil Judge and learned District Judge and dismiss the suit of the respondents with costs throughout. M.BA./930/P Revision accepted.