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Judgment
Odgers, J.—In this case the appellant-plaintiff demised the suit property to Krishnan Najar and Kunju Nayar on Adimayavana right on 7th
April 1908. 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 Ks. 125 shall be paid by the lessee and further documents exchanged between the parties
Accordingly the assignees brought a suit in 1913 for renewal of the Adimayavana lease and for the acceptance of the 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 assignees 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 para. 2 and on the strength of title, as the Adimayavana right has ceased."" Both the
lower Courts have found that the plaintiff''s suit is barred by limitation, because Article 143 is applicable. That Article provides for a suit in which
the plaintiff has become entitled to possession ok Immovable property by reason of forfeiture or breach of condition. Had this suit been brought by
1he plaintiff against the lessees, Krishna Nayar and Kunju Nayar, the suit would undoubtedly have come under Article 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 1he 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 me,
therefore, that Article 143 is clearly inapplicable. In fact when the plea of limitation was first laised in the defendants'' written statement, Article 144
was relied on and that or Article 142 is the Article which is applicable.
The contention is raised for the respondents that they are taken by surprise by this plea that Article 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 Article 143 is not applicable; and inasmuch as it was not in the first place the contention of the
defendants that Article 142 is applicable, this plea of being taken by surprise cannot be upheld.
The question then remains whether the plaintiff''s suit is barred by Article 144, in which case the period of 12 years begins when the possession
of the defendants becomes adverse to the plaintiff. The defend ants got into possession by virtue of their assignment from the original lessees, and
the lessees were entitled, to list anybody into possession during the terms of their tenancy which enured for at least 12 years. During that period of
12 years from 1898, the possession of the defendants under the lessees was under the lessees who held under the plaintiff. There can, therefore be
no question of the possession of-the defendants being adverse to the plaintiff from the date of their assignment. It could only become adverse after
the 12 years0 lease had expired and the legal origin of their possession had changed. In that view this suit is within time.
It is then contended that Article 142 will apply and the plaintiff must prove that he has been dispossessed of the property within 12 years of the
suit. During the 12 years subsequent to 1898 the property was in the possession of the defendants with the permission of the plaintiff''s tenants and,
therefore, it cannot be said that the plaintiff was dispossessed, for his tenants were entitled to possession and could allow defendants to enter into
possession. It is suggested that the defendants by reason of the assignment in 1900 pre scribe (sic) an Adimayavana tenure as against (sic) the
original lessees and also plaintiff. If that were so, their title had become complete before the suit of 1913 was ''filed''. Inasmuch as that suit was
based on the allegation that the defendants were the Adimayavana tenants of the plaintiff the plea that they had obtained such a fight by adverse
possession should have been pleaded. Not having taken such a plea in that suit, the defendants are precluded Under Expl. IV to Section 11,
C.P.C. from raising it now.
The plaintiff''s suit seems to have been very inefficiently conducted in the lower Courts and a large number of issues have been framed which
seem to be quite irrelevant, in view of the fact that the plaintiff does not claim by reason of any forfeiture incurred by the defendants. It is, however,
argued that there are other points in the case which should be determined and, therefore, I think it is advisable to refer the appeal back to the lower
Appellate Court for decision on the other point which it considered unnecessary to decide and any other points that legally arise. The view of the
case set out here does not seem to have been pleaded definitely in the lower Courts and, therefore, I think that the respondents are entitled to a
further hearing.
I may also add that the plaintiff relies on the breach of another condition in the Adimayavana lease, namely, that no renewal fee was paid on the
expiry of the 12 years'' time and consequently he is entitled to recover possession of the property on that ground.
I, therefore, set aside the decree and-remand the case to the lower Appellate Court for further hearing and for decision in the light of the above
remarks on the other point or punts which were not determined before. It is suggested for the respondents that additional evidence should be
taken, but the respondents'' Vakil has been unable to point out in what respect evidence can now be admitted which should not have been
adduced in the Trial Court as the case was understood there. I leave it to the discretion of the lower Appellate Court to decide whether any
additional evidence is necessary. Costs of this appeal will abide the result.
Court-fee on the memorandum of appeal will be refunded to the appellant.