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Judgment
K.P. Sivasubramaniam, J.—The parties in the appeal and the suit are one and the same. Pursuant to the directions of the Supreme Court in
C.A. No. 2825 of 1996, both the Second Appeal and the suit have been taken up for joint hearing.
The Second Appeal is against the judgment of learned Principal Judge, City Civil Court, Madras in A.S. No. 260 of 1994 in reversing that of
the judgment and decree of learned I Assistant Judge, City Civil Court, Madras in O.S. No. 10893 of 1989. The plaintiff in the said O.S. is the
appellant before this Court.
The plaintiff filed the said suit in O.S. No. 10893 of 1989 for permanent injunction restraining the defendant from demolishing any portion of the
suit property, contending that the suit property belongs to him absolutely and the defendant was inducted into possession of the property as a
tenant in the hut of the suit property on a monthly rent of Rs. 8/-, R.C.O.P. No. 3112 of 1969 was filed before the Rent Controller, Madras for
eviction on the ground of demolition and reconstruction. The eviction was ordered and proceedings became concluded before this Court in favour
of the plaintiff, but, as the plaintiff had moved to U.S.A., he could not pursue the execution of the order of eviction. Another proceeding was
initiated in R.C.O.P. No. 3 of 1989 before the Rent Controller, Madras on the ground of willful default and requirement for demolition and
reconstruction. The defendant set up tide in himself over the suit property, and claimed protection under Tamil Nadu City Tenants'' Protection Act.
The claims of the tenant are totally unsustainable and the defendant being a tenant, continued to be a tenant. His claim of ownership over the
superstructure was specifically rejected in the earlier proceedings and now, the tenant, realising his untenable position, was attempting to put up a
new construction after demolishing old structure. He was estopped from claiming any ownership.
In the written statement filed by the defendant in the said O.S., he contended that the suit was not maintainable and the plaintiff had no right or
title over the suit property,. Hence, the bare suit for injunction was not maintainable. There was no estoppel against the defendant claiming title to
the property. It was incorrect to state that his claim for the superstructure had been negatived in the earlier proceedings. There was no truth in the
statement that the defendant was trying to remove any superstructure belonging to the plaintiff. Assuming without admitting that the plaintiff had any
right over the property, such a right had been extinguished long ago. The suit was also barred by limitation. R.C.O.P. No. 3 of 1989 has also been
dismissed and hence, that suit was barred byres judicata.
Learned trial Judge, on a consideration of the said pleadings and evidence, held that the defendant, being a tenant, cannot be heard to claim
adverse title. The suit was consequently decreed. The appellate Court, however reversed the decree of the trial Court after holding that after the
conclusion of the first round of rent control proceedings, which ultimately ended before this Court in C.R.P. No. 2919 of 1972, the landlord-tenant
relationship between the parties had been terminated by operation of law, as a consequence of the order directing the defendant to hand-over
possession to the plaintiff within three months. Therefore, the plaintiff would be ousted after three months from the date of the order of this Court in
C.R.P. No. 2919 of 1972 dated 12.12.1972. The appellate Court also held that the suit for bare injunction was not maintainable without praying
for the declaration of title. Hence, the present Second Appeal by the landlord.
In the meantime, in the second round of the rent control proceedings, as against the dismissal of R.C.O.P. No. 3 of 1989 by the Rent
Controller, the appellate authority allowed the appeal of the landlord in R.C.A. No. 1063 of 1991. In the revision by the tenant in C.R.P. No.
3257 of 1993, Thanikkachalam, J. as he then was, held that after the eviction proceedings in R.C.O.P. No. 3112 of 1969, which became final,
there was no fresh lease agreement between the parties so as to enable the landlord to plead landlord-tenant relationship and hence, the tenant was
deemed to be a trespasser. With the result, the revision was allowed, which was pursued by the landlord to the Supreme Court.
In disposing of Civil Appeal No. 2825 of 1996, by its order dated 28.4.1998, the Supreme Court took note of the pendency of the above
Second Appeal and also the suit filed by the landlord before this Court in C.S. No. 72 of 1997 for declaration of his title and for possession of the
property and held that it would not be appropriate to go into the merits of the Civil Appeal and that it was sufficient to direct that the High Court
shall decide C.S. No. 72 of 1997 and S.A. No. 438 of 1996 pending between the parties, uninfluenced by any finding recorded by the Courts at
any stage of the proceedings leading to the filing of the civil appeal before the Supreme Court.
In C.S. No. 72 of 1997 on the file of this Court, the plaintiff/landlord had prayed for declaration of plaintiffs title to the suit property, for
recovery of vacant possession and for mesne profits. In the suit, the plaintiff had stated the facts relating to the filing of two rent control proceedings
and the results of the said proceedings. It was further stated that in 1973, the plaintiff left for U.S.A. Taking advantage of the plaintiffs absence, the
defendant did not pay the rent to the plaintiff.
It was further stated in the suit in C.S. No. 72 of 1997 that in R.C.O.P. No. 3 of 1989, the defendant had contested stating that he was entitled
to protection under City Tenants Protection Act since he was the owner of the superstructure. As regards the willful default, the defendant pleaded
that since notice of demand was not given by the plaintiff, there was no question of willful default. It was further stated in the suit that R.C.O.P. 3 of
1989 was dismissed holding that the plaintiff has not proved that the defendant is not entitled to claim adverse possession. It was further stated in
the suit about the filing of O.S. No. 10893 of 1989 by the plaintiff as against the defendant praying for permanent injunction restraining him from
demolishing the superstructure. It was further stated by the plaintiff in the suit in C.S. No. 72 of 1997 that the findings in the earlier rent control
proceedings under the Rent Control Act had become final, recognising the defendant only as a tenant and it was erroneous to contend that the
defendant had become trespasser. The plea of adverse possession as raised by the defendant was without any substance.
In the written statement filed by the defendant to the suit in C.S. No. 72 of 1997, the various contentions raised by the plaintiff were denied.
After stating the facts relating to the earlier proceedings, the defendant contended that there was no relationship between the plaintiff and the
defendant as landlord and tenant and the same had ceased to exist constituting the defendant as a trespasser in the suit property and that the
plaintiffs remedy would lie elsewhere. The present suit has been filed by the plaintiff for grabbing the suit property. The contention that the plaintiff
had gone to America and therefore could not initiate execution proceedings, cannot be a ground for filing the second round of rent control
proceedings and the subsequent filing of the suit. The defendant would also state that at no point of time, any document of tenancy had been taken
from him or his father, by the plaintiff. The plaintiff has lost his right of ownership over the superstructure by adverse possession. The defendant
was holding the property in his own rights, as the relationship of landlord-tenant had been destroyed by operation of law. The defendant also set
up certain other claims of having exclusive rights over the property, having allegedly acquired the same from his father who got the same from one
Katta Gramani. The defendant''s father and after his death, the defendant, had been in absolute possession and enjoyment of the suit properly
without any interruption from anyone. It was further stated by the defendant that assuming that by virtue of earlier rent control proceedings, the
relationship of landlord and tenant existed, after the expiry of three months'' time granted for vacating the premises, the possession of the property
by the defendant had become adverse to the plaintiff and on the expiry of twelve years from that date, he had perfected his title by adverse
possession under Article 67 of the Limitation Act. The plaintiff had lost his right to execute the eviction decree dated 12.12.1972 and since the
defendant had perfected his title by adverse possession, the question of claiming right under the City Tenant''s Protection Act did not arise and the
claim made earlier was by mistake of his rights. The suit was clearly barred by the principles of res judicata and hence, liable to be dismissed in
limine.
The following issues were framed for trial on 12.12.1998.
(i). Whether the plaintiff is entitled to declaration of his title in respect of the suit property?
(ii). Whether the defendant was in possession as a tenant under the plaintiff?
(iii). Whether the defendant has perfected title by adverse possession?
(iv). Whether the plaintiff is entitled for recovery of possession from the defendant?
(v). Whether the plaintiff is entitled for mesne profits from the defendant? and
(vi). To what relief, if any, is the plaintiff entitled to?
Subsequently, the above Second Appeal and the suit were taken up for hearing. Following additional issue was framed in the suit considering
the averments in paragraph 18 of the plaint and paragraphs 20 and 21 of the written statement:
Whether the suit is barred by limitation?
After the framing of the additional issue, Mr. V. Raghavachari, learned counsel for the respondent/ defendant had sought for disposal of the
additional issue as a preliminary issue in the suit. According to him, the issue relates to jurisdiction of the Court and that, having regard to Section
3of the Limitation Act read with Order 14 Rule 2 C.P.C., the said issue may be decided as a preliminary issue, and that, in the event of the said
issue being found against the plaintiff, no other issue would arise for consideration in these proceedings. Elaborate arguments were advanced by
both sides in the context of the issue relating to limitation.
According to Mr. Raghavachari, the pleadings in the plaint itself would show that the plaintiff was fully aware of the fact that the suit was
barred by limitation and a perusal of paragraphs 17 and 18 of the plaint would show that the plaintiff was attempting to buttress the issue by
pleading that the suit was within the period of limitation. In paragraphs 17 and 19 of the plaint, the plaintiff had contended that the defendant was
disentitled and estopped to plead adverse possession. In paragraph 18 of the plaint, the plaintiff has stated that the period of 12 years to execute
the order under eviction having held that, on 12.12.1984, the defendant would be deemed to be a trespasser and only after the said date, the suit
had been filed within the period of limitation. According to learned counsel, such contention was totally untenable and he would contend that the
tenant would become a trespasser when once the order of eviction had been granted. He would also refer to paragraphs 20 and 21 of the written
statement and contend that the suit was badly out of limitation and that the limitation period should be calculated from 12.12.1984, which was an
astonishing proposition, and therefore, it was just and proper to decide the point as a preliminary issue. Article 67 of the Limitation Act, 1963 is
applicable to the present case and the plaintiff, not having initiated the proceedings for eviction within twelve years after the date of eviction, was
not entitled to any relief.
Mr. M. Venkatachalapathy, learned Senior Counsel appearing for the plaintiff/landlord however contends that the continued possession of the
property by the tenant by any length of time, cannot become adverse to the landlord and at any rate, there was a valid acknowledgement of the
continuing landlord-tenant relationship, having regard to the pleading by the tenant in the Second round of the proceedings before the Rent
Controller, where, he had not pleaded the question of limitation. He had positively claimed protection under the City Tenant''s Protection Act in the
counter filed in the year 1989 in the second R.C.O.P. Hence, the suit was within the period of limitation. There was no animus for the tenant to
claim any adverse possession and mere non-payment of rent alone cannot clothe the tenant with a right to claim title by adverse possession.
Though this litigation had a chequered career the facts which are sufficient for a decision over the preliminary issue are very short and admitted
without any dispute by both sides. The landlord obtained an order of eviction in R.C.O.P. No. 3112 of 1969, which became final on 12.12.1972
with a direction to the tenant to handover vacant possession by granting three months'' time thereafter. Therefore, after 12.3.1973, the order of
eviction had become executable. The second round of rent control proceedings seeking eviction was initiated in the year 1989. The suit for bare
injunction in O.S. No. 10893 of 1989 to restrain the defendant from demolishing or putting any construction was also filed only in the year 1989.
The present suit for declaration of title and possession was filed in the year 1997 in C.S. No. 72 of 1997. There was no correspondence between
the parties or any renewal of lease or any conduct on the part of both parties which would amount to either directly or even indirectly recognising
or admitting the continuance of tenancy. There was also no conduct on the part of the tenant disputing the tenancy except after the filing of the
second round of rent control proceedings and C.S. No. 72 of 1997.
The attempt on the part of Mr. Venkatachalapathy to show that there was an acknowledgement of tenancy by the tenant may be dealt with at
first. Reliance is placed on the counter of the tenant in R.C.O.P. No. 3 of 1989 and his written statement in O.S. No. 10893 of 1989. There is no
dispute that in both the pleadings, the tenant did not contend that the landlord had lost his right to recover the possession by virtue of Article 67 of
the Limitation Act. He disputed only the ownership of the superstructure and not the land. In the counter in R.C.O.P. No. 3 of 1989, he went
further to claim the benefits under the City Tenants'' Protection Act and also contended that there was no wilful default, since there was no demand
for paying the rent Therefore, it could be stated without any hesitation that there was an acknowledgement by the tenant in the year 1989 when he
filed his counter in the said R.C.O.P. No. 3 of 1989 and also in 1991 when he filed his written statement in the said suit O.S. No. 10893 of 1989.
But Section 18of the Limitation Act leaves no room for any doubt that any acknowledgement should be ""before expiration of the prescribed period
for a suit."" It is unnecessary to deal with a catena of decisions on this issue and it would be sufficient to cite only the latest pronouncement of the
Supreme Court in the case of Sampuran Singh and Others Vs. Smt. Niranjan Kaur and Others, . After extracting Section 18 (1) of the Limitation
Act, the Supreme Court held as follows at paragraph 9:
Thus, the acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing the suit, in other words, if the limitation
has already expired, it would not revive under this section. It is only during subsistence of a period of limitation, if any such document is executed,
that the limitation would be revived afresh from the said date of acknowledgement.
Therefore, the acknowledgement of tenancy in the years 1989 and 1991 cannot have the effect of renewing a barred claim, if the contention of
learned counsel for the tenant is to be accepted, namely, that on the facts of the present case, only Article 67 of the Limitation Act would apply.
According to Mr. Venkatachalapathy, J. it is only Article 65 of the Limitation Act which would apply. But, Mr. Raghavachari contends that
Article 67, being the specific provision dealing with tenancy, Article 65 can have no application. To appreciate the rival contentions, it would be
relevant to extract below the Articles 65 and 67:
Article 65:
Description of Period of suit limitation Time from which period begins to run
For possession Twelve years of immovable property of any When the possession of the defendant becomes
interest therein based on title adverse to the plaintiff
Article 67:
Description of Period of suit limitation Time from which period begins to run
By a landlord to Twelve years recover possession from a tenant When the tenancy is determined
Though both the said Articles provide only the very same period of twelve years as limitation, learned Senior Counsel for the landlord prefers
to rely on Article 65, as it provides a flexible starting point of limitation, namely, when the possession becomes adverse to the plaintiff, and also his
suit was based on the claim of title. According to learned Senior Counsel for the landlord, the assertion on the part of the tenant to deny the title
over the suit property after the eviction order had become final in the year 1973, for the first time, was only in the year 1989 when the counter was
filed by the tenant in the said year. Thereafter, a suit for injunction was filed in 1989 itself and the suit for declaration had been filed in the year
1997, and therefore, both the proceedings are within the period prescribed according to learned Senior Counsel for the landlord.
Several rulings were relied upon by Mr. Raghavachari, learned counsel for the tenant. I am excluding and not referring to such of those
decisions which deal with cases where ''lis'' was between rival parties claiming title to the property and not on the basis of the landlord-tenant
relationship or the termination of tenancy. Leaving aside those rulings, the following are the judgments referred to by Mr. Raghavachari:
(i). Ramanuj v. Ramkrishna (AIR 1922 Privy Council 184);
(ii). Debi Prasad v. MT. Gujar (AIR 1922 Allahabad 423)
(iii). Bisheshar Nath v. Kundan (AIR 1922 Allahabd 318)
(iv). Sidram Lachmaya v. Mallaya Lingaya (1948 (Vol.51)Bombay Law Reporter 34):
(v). Veerayya v. Subbamma (AIR 1955 Andhra 78)
(vi). Bhagabat Patnaik v. Madhusudhan Panda (AIR 1965 Orissa (11):
(vii). Thailammal v. Batumalai (1965 (I) M.L.J 383)
(viii). Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta and Others, and
(ix). Smt. Shakuntala S. Tiwari Vs. Hem Chand M. Singhania,
In all the above mentioned rulings, the Courts have positively laid down the following principles giving; no room for any doubt:
(a). A suit by a landlord for recovery of possession would be governed by only Article 67(old Article 139) of the Limitation Act.
(b). The starting point of Limitation would be the termination of tenancy either by efflux of tenancy period or by notice or by decree or order for
eviction, and
(c). The position of the tenant thereafter would be that of a trespasser unless and otherwise there was any renewal of the lease or payment of rent
by the tenant.
I would again come back to the above rulings after dealing with the points raised on behalf of the plaintiff/landlord.
Following are the rulings relied on by Mr. Venkatachalapathy:
(i). In the judgment of the Supreme Court in V. Dhanapal Chettiar Vs. Yesodai Ammal, , the issue which arose for consideration was as regards
whether in respect of a tenant enjoying the benefit of Rent Control Act, notice u/s 106of the Transfer of Property Act was necessary or not. The
said judgment does not deal with the issue relating to limitation as would arise either under Article 65 or Article 67 of the Limitation Act.
(ii). In Shyam Kreshto v. Ganesh (AIR 1930 Patna 20), a Division Bench of the Patna High Court dealt with a case of tenant holding over who
stopped paying the rent. It was held that the lease does not come to an end and there can be no adverse possession. The adverse possession can
start only after the lease was determined and it was held that the tenant was estopped from denying the title of the landlord while the tenancy was
subsisting.
(iii). In Bhagavathy v. Savarimuthu (AIR 1976 Madras 124), a learned single Judge of this Court held that in a suit for possession based on title,
burden of proof was held to be on the defendant who claim right to the property by way of adverse possession.
In all the above three cases, the issue which arose for consideration is the claim of adverse title by the tenant. In the present case, we are not
now confronted with any such claim. In considering the preliminary issue, all that we are required to see is whether the suit for declaration of title
and recovery of possession is within the period of limitation as provided under the Limitation Act. At this stage, we are not concerned with the plea
of adverse title by the tenant. Therefore, the question as to whether there was any animus in the conduct of the tenant to claim adverse title and
whether the question of non-payment of rent alone would amount to adverse possession and whether the acknowledgement in the pleadings by the
tenant would militate against his plea of adverse possession, etc., are not germane to the preliminary issue of limitation as raised by learned counsel
for the tenant/respondent.
In the judgment of the Full Bench of this Court in Brahmayya v. Sundaramma (AIR 1948 Madras 275) also, the same issue arose for
consideration and it was held that non-payment of rent alone was not proof of adverse claim. In that case also, the question of limitation to file a
suit for possession after termination of the tenancy did not arise.
A Full Bench of the Kerala High Court in Ouseph Lonan v. K. Pisharady (AIR 1973 Kerala 76), dealt with a case of Section 13 of Kerala
Land Reforms Act, 1946, where under, the tenant was entitled to a fixed period of tenure in respect of his holding, notwithstanding anything
contrary contained in any law, custom, usage, etc. It was in those circumstances, it was held that even though the tenancy had been determined, the
tenant was entitled to the fixed period of tenure. In fact, the Full Bench made it clear that when once there was a demand for possession by the
landlord after the termination of tenancy, when the tenant had no other valid claim to remain in possession, it would assume the character of
trespass.
Though none of the decisions mentioned above come to the rescue of the landlord, as regards the question as to whether Articles 65 or 67
would apply to the facts of the present case, the following two decisions appear to support the contention on behalf of the landlord. It may be
recalled that in C.S. No. 72 of 1997, the relief prayed for is for declaring the title of the plaintiff to the suit property, for recovery of vacant
possession of the suit property and for past and future mesne profits.
In Krishnaveni Ammal v. Sundaralakshmi Ammal (100 L.W. (Part 42) 1188), Ratnam, J, as he then was, dealt with a case of dispute between
landlord and tenant and in the suit by the landlord for declaration of title and recovery of possession, learned Judge held that Article 67 of the
Limitation Act provided only for a suit for recovery of possession by the landlord within twelve years after the termination of tenancy and that in
that case, the relief prayed for was for declaration of title, recovery of possession and mesne profits. Therefore, according to learned Judge, the
suit was not one for recovery of possession simpliciter as contemplated under Article 67 of the Limitation Act. Further, the suit has been valued u/s
25 (a) of the Tamil Nadu Court Fees and Suits Valuation Act for declaration and possession. It was therefore held that the plaint did not proceed
to pray for the recovery of possession simpliciter, as against an ex-tenant and therefore, there was no question of the applicability of Article 67 of
the Limitation Act. Learned Judge further proceeded and held that the appropriate Article would be only Article 65 relating to suit for recovery of
possession based on title.
The view which Ratnam, J took as above, appears to be favoured by a recent judgment of the Supreme Court in Shri Ajit Chopra v. Shri
Sadhu Ram & ors. (1999 (9) Supreme 297). That arose out of a suit for possession based on title (paragraph 5 of the judgment) and the
tenant/defendant claimed title by adverse possession. It is true that the Supreme Court did not specifically deal with applicability of Article 65 or
Article 67 of the Limitation Act, but, after examining several earlier decisions, in the context of filing a second proceeding or a suit for recovery of
possession, the Supreme Court expressed that no second suit would lie merely on the basis of an earlier judgment, if the time for execution of the
earlier decree had become barred. But, on the facts of the case, the Supreme Court held that the same was distinguishable, since, the plaint was
not based on the decree obtained for eviction under Rent Control Law and that the second suit for eviction on the basis of title was maintainable
and not barred, (paragraphs 25 to 30 of the judgment).
In this context, I would again go back to the rulings relied on by Mr. Raghavachari. Except the following cases dealt with below, the other
rulings deal only with plea for ejectment or for recovery of possession simpliciter, and hence, not useful:
(i). In the judgment of a Division Bench of the Allahabad High Court in Bisheshar Nath v. Kundan (AIR 1922 Allahabad 318), the facts stated in
the judgment do not clearly bring out the nature of the suit.
(ii). The judgment of a Full Bench of the Bombay High Court in Sidram Lachmaya v. Mallaya Lingaya (1948 (Vol.51 B.L.R. 34) deal with a
peculiar case where the plaintiff/lessor had sold the property to the defendant who was at an earlier point of time, a tenant under the plaintiff.
(iii). The judgment in Thailammal v. Batumalai (1965 (I) M.L.J. 383) deals with a case where the suit property was mortgaged in favour of the
defendant and at the same time, granted a lease in favour of another person for a term of five years. The mortgagor as well as the tenant died
during the lease period. The widow of the lessee alienated the property to the husband of the defendant and the plaintiff filed the suit questioning
the validity of the alienation. Therefore, the relief prayed against the heirs of the lessee was totally different and not a suit for declaration and
possession as in the present suit.
(iv) The decision of the Supreme Court in Biswabani Pvt. Ltd v. Santosh Kumar Dutta & ors. (1980 (1) R.C.J. 156) was another peculiar case
where the lessee filed a suit against lessor for declaration that the plaintiff was the lessee.
Therefore, none of the decisions relied on by Mr. Raghavachari would militate against the judgment of Ratnam J, as he then was, in 100 L.W.
(Part 42) 1188 ( cited supra) holding that the suit for declaration of title and recovery of possession fall only under Article 65 and not under Article
67 of the Limitation Act, nor, the views expressed by the Supreme Court in 1999 (9) Supreme 297 (cited supra)
For the sake of completion, I would also consider the contention of Mr. M. Venkatachalapathy that the provision of Limitation Act providing
for time limit to recover possession from the tenant, will not apply to statutory tenancies protected under the Rent Control Acts. This submission is
made on the basis of the judgment reported in Ram Bett (Smt) and others v. Mohd. Yusuf Khan, 1995 Supp (3) SCC 606 . That is a judgment
which dealt with the question as to whether u/s 23of the Madhya Pradesh Accommodation Control Act, 1961, a retired Government servant
should move the Court immediately after his retirement. The Supreme Court held that they did not find any such limitation under the said Section.
The issue raised by Mr. Venkatachalapathy is directly covered against him in judgment of the Supreme Court in Smt. Shakuntala S. Tiwari Vs.
Hem Chand M. Singhania, In paragraph 7, the said issue was dealt with as extracted below, which would positively hold that the provisions of the
Limitation Act would be applicable:-""7 It was further submitted on behalf of the appellant that columns 1 and 3 of the Schedule of the Limitation
Act should be read together and if a case does not fall within either column 1 or column 3, the residuary article must apply. Reference may be
made to the observations in Kirpal Shaan Sant Singh v. Harkishan Das Narsingn Das (AIR 1957 Pun 273, 275) M/s. Swastik Agency, Madras v.
Madras Port Trust (AIR 1966 Mad 130, 135, = 1965 (2) Mad.L.J. 113): Mullavittil Seed Kutti v. K.M.K. Kunhi Pathumma (AIR 1919 Mad
972).
Therefore, I am unable to agree with the contention so raised.
Therefore, I am inclined to agree with the contention on behalf of the landlord, namely that prayer in the present suit being based on declaration
of title and not simply a suit for recovery of possession, Article 67 of the Limitation Act will not apply and that Article 65 would apply to the facts
of the present case. Under Article 65, the starting point of limitation would be when possession of the defendant would become adverse to the
plaintiff. As held by a number of rulings mentioned above, inclusive of a Full Bench of this Court in AIR 1948 Madras 275 (cited supra), mere
non-payment of rent alone cannot become adverse as against the landlord. In the present case, it cannot be disputed that for the first time, a
positive assertion of adverse claim was projected by the tenant only through his pleadings which were filed in the years 1989 and 1991
respectively.
Therefore, I am inclined to answer the preliminary issue of limitation (additional issue ) in favour of the plaintiff in C.S. No. 72 of 1997 and
against the defendant. With the result, hearing of the Second Appeal in S.A. No. 433 of 1996 and the Civil Suit in C.S. No. 72 of 1997, on their
merits, have to be taken up separately.