LODHA, J. - (1.) THE following pedegree may be helpful in understanding the facts relevant for the decision of this appeal: - Mohanlal Girdharilal (issuless) Kanhiyalal Biharilal Gerilal (died issveless) Brijmohan Gopal Krishanlal Sunderlal Ganeshlal Govindlal
(2.) BRIJMOHAN and Gopal filed a suit on 8-12-1954 in the court of Munsiff (East) City, Jaipur against Ganeshlal and Govind for possession of one tin shed over the 'jharoka' in the first floor and a 'gotha' in the ground floor of a house situated in the 'chowari Ramchanderji', Jaipur, alleging that the house in question was the ancestral property of Mohanlal gone in adoption to his maternal grandfather Devishanker on 13-9-1879. It was averred that Kanhiyalal and his wife died during the life-time of Mohanlal and at the time of Kanhiyalal's death all his three sons, namely, Krishanlal, Sunderlal and Ganeshlal ware minors and consequently Mohanlal, their natural grand-father, started looking after them, and they also used to mess and reside with Mohanlal, and thus, according to BRIJMOHAN and Gopal, the defendants were in permissive occupation of the apartments in dispute. It was further stated that Krishanlal and Sundrlal died issueless and defendant No. 1 Ganeshlal continued to occupy the apartments in dispute as licencee. The case of BRIJMOHAN & Gopal was that Girdharilal, Biharilal & Gerilal, and other three sons of Mohan Lal inherited the house in question and were in possession of the same as owners, but that on 15th September, 1948 Ganeshlal declared himself to be a descendant of Mohanlal and got an entry made in the survey record to the effect that he had one third share in the house in dispute. This gave rise to the suit by BRIJMOHAN and Gopal, who pleaded that their suit was within limitation by virtue of Article 144 of the Limitation Act, 1908. This suit was registered as Civil Suit No. 453 of 1954. Soon after the institution of the suit by Brijmohan and Gopal on 30-6-1955 Ganeshlal also filed a suit against Brijmohan and Gopal for partition of the house in question claiming half share in it. This suit was instituted in the Court of Civil Judge, Jaipur and was registered as Civil Suit No. 144 of 1955 Both the suits were transferred to the Court of Additional Civil Judge, Jaipur City, who by his judgment dated 20-4-1961 dismissed Ganeshlal's suit for partition as he came to the conclusion that his father Kanhiyalal had gone in adoption to his maternal grandfather Devishankar and had thereby lost all his rights in natural family. He also dismissed the suit filed by Brijmohan and Gopal for possession of specific apartments on the ground that the alleged permissive occupation by Ganeshlal was not proved and that the suit was also barred by limitation u/art. 142 of the Limitation Act. Aggrieved by the judgment and decree in the partition suit No. 144 of 1955 Ganeshlal filed appeal which was registered as Appeal No. 167 of 1961. Similarly Brij Mohan and Gopal also filed appeal against the decision in suit No. 453 of 1964 and their appeal was registered as Appeal No. 252 of 1961. The learned District Judge, Jaipur City by a signle judgment dated 18 3 64 dismissed Ganesh Lal's appeal, but allowed Appeal No. 252 of 1962, filed by Brijmohan and Gopal and decreed their suit for possession of the 'kotha' and the tin-shed. Ganeshlal has not filed any appeal to this Court in the partition suit, but has preferred this appeal from the decree passed by the District Judge for possession of the tin-shed and the 'kotha' pertaining to suit No. 453/1954 and has urged that the suit was clearly barred by time. Before I embark upon the consideration of the rival contentions advanced on behalf of the parties I should make it clear that the decree of dismissal of Ganeshlal's suit for partition has become final and it must be held for the purpose of decision of this appeal also that Ganeshlal's father Kanhiyalal had gone in adoption to Devishanker and had lost all his rights in the natural family, and consequently to the house in question, which belonged to his natural family. The only point urged by the learned counsel for the appellant is that the suit was barred by time. Learned counsel for the appellants has urged that the learned District Judge had committed an error of law in drawing an inference that Ganeshlal's possession was permissive from the beginning and that only in 1948 when Ganesh Lal began to assert his right to the room and the tin shed as an owner, that it gave rise to the present suit, and, therefore, the suit must be deemed, to have been filed within limitation. It is submitted that the plaintiffs have miserably failed to prove that the defendant - appellants got permissive possession of the apartments in dispute. It is further urged that the case is governed by Article 142 of the Limitation Act, l908 (which will hereinafter be referred to as 'the Act') according to which the plaintiffs should have shown that they had been dispossessed or their possession had discontinued within 12 years of the filing of the suit. I may first examine the question of permissive possession. The case set up by the plaintiffs is that Mohan Lal started looking after the sons of Kanhiyalal including the defendant Ganeshlal after the death of Kanhtyalal and his wife, and they used to take food at Mohanlal's kitchen and thus all the three sons of Kanhiya Lal got permissive possession of the apartments in question in the house of Mohan Lal and that permissive possession continued qua defendent No. 1 Ganeshlal after the death of his brothers Krishanlal and Sunderlal. (vide para No 3 of the plaint ). The defendant's reply to this allegation is that the defendants constituted a joint Hindu family with Mohanlal and for that reason Mohanlal used to look after the family as Karta. They had denied that they were in permissive possession of the apartments in question On the other hand their plea is that they are in possession of apartments in exercise of their right as coparceners in the family. It has been further asserted in para No 5 of the written statement that the defendants are in possession of the property in dispute as owners. It is conceded by the learned counsel for the respondent that there is no direct evidence of permissive possession. Ganeshlal has stated as P. W. 1 that he or his father had never taken permission to occupy the apartments in question but that his father had died in this house and that he had been living in the house since his father's life time. He has further stated that his father Kanhiyalal died in Smt. 1955 and that he had been paying the house-tax of this house. P. W. 2 Ramlal has stated that Kanhiyalal used to live with his natural father Mohanlal in the house in dispute and that the defendant Ganeshlal was born in this very house. P. W. 4 Rambux has also stated that upto the last minute of his life Kanhiyalal lived in the house in dispute with Mohanlal. Even among the witnesses examined by the plaintiffs Brijmohan and Gopal, D. W. 6 Prem Narain has stated that he had seen Mohanlal living in the house in question with ail his four sons including Kanhiyalal and that after Kanhiyalal's Death his sons Ganeshlal, Sunderlal and Krishnalal lived in it. To the same effect is the statement of D. W. 10 Nandlal, who has deposed that Kanhiyalal, and the defendants have always been living in the house in dispute. It my be noted here that only one set of evidence in both the suits was recorded in the partition suit instituted by Ganeshlal and that is why the witnesses of Brijmohan and Gopal have been marked as D. Ws. whereas those of Ganeshlal have been marked as PWs ). From the evidence I have referred to above it is clear that the defendants had not been given any permission to occupy the apartments in question, but that they had been living in the house in question since the time of their father Kanhiya Lal, who had also lived and died in this very house. It is not the plaintiffs' case that Kanhiyalal had been granted permission to live in the house in question. Consequently, I am of opinion that the plaintiffs have failed to show that the defendants are in permissive occupation of the house in question and the learned District Judge committed an error of law in drawing an inference based on no evidence that Ganeshlal's possession was permissive from the beginning. The next question that arises for consideration is whether the plaintiff's suit can be treated within limitation even though the case of permissive occupation set up by them has fallen to the ground? Learned counsel for both the parties relied on a number of rulings in support of their respective contentions Learned counsel for the appellant relied on Mst. Bejji vs. Bhairon (1), Official Reveiver vs. Govindaraju (2), Beharilal vs. Narain Das (5), Lingemma vs. Putte Gowla (4), Krishna Pillai vs. Kumara Pillai (5), Thja Sibi vs. Gulam Mohammed (6), and Sham Koer vs. Dah Koer (7 ). On the other band learned counsel for the respondents relied on Smamirao vs. Bhimabhai (3) Kadirbux vs. Ramchand? In mst. Bajji vs. Bhairon (1) it was held by a learned single Judge of this Court that the plaintiff's failure to prove permissive possession of the defendant set up by him in the plaint made it necessary for him to prove that he was in possession within 12 years. In coming to this conclusion learned Judge relied upon two Privy Council cases: Mohima Mosoondar vs. Mohesh Chunder Neogi (10) Nawab Muhammed Amamul Khan vs. Badan Singh (11) he also quoted with approval observations from Beharilal vs. Naraindas (3 ). It was held by him that in such cases Article 142 of the Limitation Act, 1908 was applicable.
(3.) IN Sham Koer vs. Dah Koer (7) their Lordships of the Privy Council held that a possession as of right by the widow and daughter-in-law of an undivided Mitakshara family of a portion of the undivided estate for twelve years bars the heirs of the deceased unless they can show that the possession was permissive. In Official Receiver vs. Govindaraju (FB) (2) Leach C. J. , speaking for the Court observed as follows: - "in view of these decisions of the Privy Council, it cannot in my judgment be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows, in addition to title, that he has been in possession of the property within 12 years of the suit. The Privy Council has declared that to be the effect of Art. 142 and that suits for ejectment come within the Article. . . . . . . . . " "i have said sufficient to indicate that in my opinion a plaintiff who is suing for possession of property in the occupation of another rests his case on title alone. He must show that he has exercised rights of ownership by being in possession within 12 years of suit. " In Taja Bibi vs. Glulam Mohammed (6) the plaintiff brought a suit for possession of the house of his title under a sale deed on the allegation that he had orally permitted the defendant to occupy it on the express understanding that he would vacate the premises whenever the plaintiff asked for it, but that he had failed to do so inspite of repeated demand. The defendants denied the title of the plaintiff vendor and also that he was put in possession by the plaintiff. The story of oral entrustment and permissive possession of the defendant was found to be false. It was held that the suit was governed by Art- 144, Limitation Act and in the suit the plaintiff was bound to show not only that he had title to the property but also that he or his predecessor-in-title was in possession of the house within 12 years prior to the institution of the suit. The plaintiff having failed to prove his possession within 12 years of the suit, the suit was dismissed as barred by limitation. In Lingamma vs. Putta Guwda (4) it was held that the plaintiff, who files a suit for possession, had to prove not only his title to the suit property but also his possession of the same within 12 years from the date of the suit. The same was the view taken in Krishna Pillai vs. Kumara Pillai (5 ). In Swamirao vs. Bhimabhai (8) it was held that an owner of the property does not lose his right in property merely because he happens not to be in possession of it for 12 years. It was observed that his right under sec. 28 is only extinguished at the determination of the period limited by the Act to him for institution a suit for possession of the property. In my opinion, this case is distinguished on facts and has no relevance to the case on hand. In Qadir Bux vs. Ramchand (9) it was held by the Allahabad High Court that if the plaintiff claims possession against the defendants alleging him to be his tenant and fails to prove the tenancy set up by him, Article 142 of the First Schedule to the Indian Limitation Act, 1908 will not apply and the only Article that can apply is Article 144 of the First Schedule to Limitation Act. ;