JUDGMENT
1. This second appeal at the instance of the defendant in O.S. 366 of 1977, District Munsif Court, Thanjavur, has been entertained on the following question of, Law –
“Whether the jural relationship of landlord and tenant covered by the lease deed dated 9-7-1936 had lapsed on 29-7-1961, is not the suit instituted in 1977 barred by limitation by virtue of Art. 67 of the Limitation Act 1963?”
2. The suit in O.S. 366 of 1977 was instituted by the respondents herein for a declaration of their title to the suit property and for recovery of possession and a sum of Rs. 300 by way of damages for use and occupation from the appellant. The suit property is a house situate in S. No. 19 in Melaveli Reddipalayarn village, Tharijavur taluk. According to the case of the respondents, the suit property originally belonged to Ramalinga Reddiar, deceased husband of the first respondent ancestrally and he had been in possession and enjoyment of the suit property till his death on 30-111975, and, thereafter, the respondents succeeded to the property as full owners. The appellant, according to the respondent, was a tenant under the deceased Ramalinga Reddiar and thereafter under the respondents, having entered into an oral tenancy from January 1972 on a monthly rent of Rs. 15 payable on or before the 5th of succeeding English calendar month. The further case of the respondents was that the appellant had paid the rents regularly to deceased Ramalinga Reddiar till his death on 30-11-1975, and thereafter, she did not pay any rent at all. Thereupon, a notice was issued to the appellant demanding payment of the rent, for which the appellant sent a reply notice denying the title of the respondents. In view of this the respondents issued a notice on 107-1977 purporting to terminate the lease in favour of the appellant for forfeiture by denial of title. It was under these circumstances, the respondents instituted the suit praying for the reliefs set out earlier.
3. In the written statement filed by the appellant, she denied that the suit property belonged to Ramalinga Reddiar ancestrally and that he had been in possession and enjoyment of the same till his death on30-11-1975. The tenancy under Ramalinga Reddiar as well as the respondents was also denied. The payment of rent attributed to the, appellant till the death of Ramalinga Reddiar was also denied by the appellant. According to the case of the appellant, her father took on lease a portion of the vacant land from the mother-in-law of the 1st respondent by, registered rent deed dated 9-7-1936 and a superstructure was put up therein by him and subsequent to the rent deed and the putting, up of the superstructure, the mother-in-law of the first respondent stopped exercising rights of ownership over the property and the father of the appellant had been exercising such rights -for over decades and had been enjoying the property as absolute owner and had perfected title by adverse possession. The appellant thus claimed that after her father’s death she had been exercising rights of ownership over the property as absolute owner. The appellant also denied the claim of the respondents for recovery of damages for use and occupation as claimed.
4. Before the learned District Munsif, Thanjavur, on behalf of the respondents Exs. A 1 to A9 were marked and the 1st respondent and another gave evidence as P.Ws. 1 and 2, while, on behalf of the appellant Exs. B1 to B4 were exhibited and the appellant examined herself as D.W. 1. On a consideration of the oral as well as documentary evidence, the learned District Musif found that. the respondents are the owners of the suit property, that the appellant was a tenant under, deceased Ramalinga Reddiar and thereafter, under the respondents, that the appellant, had not perfected title over the suit property by adverse possession, that the appellant is liable to pay damages for use and occupation and the respondents are entitled to recover: possession of the property from the appellant. On those conclusions, the suit was decreed, as prayed for. Aggrieved by this, the appellant preferred an appeal in A.S. 56 of 1979 to the Sub-Court, Thanjavur. An application in I.A. 289 dt.1979 was also filed by the appellant for reception of certain documents as additional evidence. The lower appellate court was of the view that the documents sought to be filed as additional evidence were relevant and had a material bearing upon the point arising for decision in the appeal and ordered the. documents to be received and marked them as Exs. B5 to B7. Considering the merits of the appeal, the lower appellate Court found that the father of the appellant had not denied the title of the owner over the suit property, though the superstructure had been put up only by him and that the appellant. had not established her title to the suit property. On that conclusion, the appeal was allowed in part and the decree and judgment of the trial court were modified declaring the title of the respondents to the vacant site and directing the appellant to, deliver vacant possession of the suit property to the respondents, after removing the superstructure. It is the correctness of this, that is challenged by the appellant in this second appeal.
5. The principal contention raised by the learned counsel for the appellant is that the tenancy under Ex. B2 dated 29-7-1936 in favour of the father of the appellant had terminated on 29-7-1961 and the suit for recovery of possession having been instituted on 23-9-1977, more than 12 years after such determination, is barred under-Art. 67 of the Limitation Act Strong reliance was also placed in this connection upon the decision in N. Arjunan v. Kuppuraj, (1976) 89 Mad LW 423. On the other hand, learned counsel for the respondents submitted that the plea , regarding the suit being barred by Art. 67 of the Limitation Act, had not been raised at all’, before the courts below and even on the footing that S. 3 of the Limitation Act could be taken advantage of by the appellant, the plea of limitation was not purely one of law; but a mixed question of law and fact on the circumstances of this case and should not therefore be allowed to be raised for the first time in the second appeal. Attention was also drawn to the decision in Kuppuraj v. Arjunan, (1980) 93 Mad LW 711 (DB), to establish that the decision rendered in Arjunan v. Kuppuraj, (1976) 99 Mad LW 423 and been reversed by a Division Bench.
6. Wether Art. 67 of the Limitation Act would apply at all to this case has to be considered first. Am 67 provides for a suit for recovery of possession by a landlord from a tenant within 12 years from the time when the tenancy is determined. In this case, a careful consideration of the advertisements in the plaint clearly establishes that the suit is laid on the basis of title to the suit property having vested in deceased Ramalinga Reddiar ancestrally during his lifetime and after his lifetime, in the resondents. It is also further seen from para 4 of the plaint that the appellant had denied the title of the respondents and that has given rise to the suit. The reliefs prayed for in the suit are, declaration of title, recovery of possession and mesne profits. In other words, the suit is not one for recovery of possession simpliciter, as contemplated by Art. 67 of the Limitation Act. Further, the suit had been valued under S. 25(a) of the Tamil Nadu Court-fes and Suits Valuation Act, 1955 for declaration and possession. What is significant is that the plaint does not proceed to pray for the recovery of possession simpliciter, as against an ex-tenant. Under these circumstances, there is no question of the applicability of Art. 67 of the Limitation Act at all on the averments in the plaint in this case.
7. Even taking into account the defence raised by the appellant, it is seen that the appellant had set up the case that her father had perfected title by adverse possession against the real owner. In other words, the appellant while accepting that. the predecessors-in-title of the respondent had title to the property, had put forth the case of title having been lost owing to the acquisition of prescriptive title by her father. Indeed the appellant had set up a rival claim of title to the property. While, in the plaint the relief of declaration of title had been sought on the footing that there has been a denial of title of the respondents to the suit property, the appellant had attempted to support her title to the same by prescription. There was thus a lis raised with reference to the title to the property both by the respondents and the appellant and in such a situation, there is no -scope at all for applying Art.67 of the Limitation Act. The appropriate Article would only be Art.65 relating to suit for recovery of possession based on title. That is how the suit -had also been understood by the appellant, for, otherwise, she would not have put forth the plea of adverse possession, which would be relevant only in a case falling ‘Under Art. 65, of the Limitation Act and not under Art.67. Thus, on the stand taken by the parties in the pleadings, there is absolutely no scope whatever for invoking Art.67 of the Limitation Act. In this view, it is not necessary to refer to the decision relied on by the learned counsel for the appellant or those referred to by the learned counsel for the respondents.
8. On a consideration of the question of title, the courts below have found that the appellant bad failed to establish her case of acquisition of title by adverse possession and that was not challenged before this court. That would mean, the respondents have not lost their title to the suit property. That property has been found by the lower appellate court to be only the site and not the superstructure, as it had recorded a finding to the effect that the superstructure had been put up only by the appellant. The modification of the decree of the trial court to that limited extent by the lower appellate court has not been challenged by the respondents and therefore, that finding regarding the putting-up of the superstructure by the predecessor-in-title of the appellant has to be upheld Consequently, no case is made out for interfering with judgment and decree of the lower appellate court. The second appeal is dismissed with costs.
9. Appeal dismissed.
