M R RY MANAVIKRAMA ZAMORIN RAJA AVL OF CALICUT Vs. PVENKATAGIRI PATTAR
M R RY MANAVIKRAMA ZAMORIN RAJA AVL OF CALICUT
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Phillips, J -
(1.) In this case the appellant-plaintiff demised the suit property to Krishnan Nayar and Kunju Nayar on Adimayavana right on 7 April 1898. In 1900 the lessees assigned their right to the first defendant and the father of the second defendant. The lease contains a provision that on the expiry of every 12 years a renewal fee of Rs. 125 shall be paid by the lessee and further documents exchanged between the parties. Accordingly the assignees brought a suit in 1913, for renewal fee. It was then held that the Adimayavana lease being inalienable the plaintiffs in that suit could not obtain a valid assignment and, therefore, their suit was dismissed. The plaintiff now brings the present suit in 1918, to recover possession of the suit properties from the assignee and their representatives. The facts are all recited in the plaint and the first prayer in the plaint is: That a decree may be passed directing the defendants to surrender the schedule items to the plaintiff by virtue of the Kaichit of 1073, described in paragraph 2 and on the strength of title as the Adimayavana right has ceased.
(2.) Both the lower Courts have found that the plaintiff's suit is barred by limitation, because Art. 143 is applicable. That article provides for a suit in which the plaintiff has become entitled to possession of immovable property by reason of forfeiture or breach of condition. Had this suit been brought by the plaintiff against the lessees, Krishna Nayar and Kunju Nayar, the suit would undoubtedly have come under Art. 143, but as I understand that article it only applies to suits to enforce relief claimable by reason of forfeiture or of breach of condition under a contract and can only apply to suits brought against parties who have incurred that forfeiture or committed the breach. In the present case, the defendants are not parties to the lease-deed and have not themselves incurred any forfeiture, or broken any condition in a contract between them and the plaintiff. It seems to be, therefore, that Art. 143 is clearly inapplicable. In fact, when the plea of limitation was first raised in the defendant's written statement, Art. 144 was relied on and it was stated that Art. 142 is the article which is applicable.
(3.) The contention is raised for the respondents that they are taken by surprise by this plea that Art. 143 is not applicable ; but inasmuch as the defendants did not plead this article in bar in the first Court and both in the grounds of appeal to the lower appellate Court and in the grounds of appeal to this Court, the point has been taken that Art. 143 is not applicable ; and inasmuch as it was not in the first place the contention of the defendants that Art. 142 is applicable this plea of being taken by surprise cannot be upheld.;
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