Chagla, C.J:—

Two questions have been referred to this full bench by my brothers Sen and Bavdekar JJ., and the two questions are:

(1) Whether the possession of a tenant is adverse to the landlord upon the expiration of the tenancy merely because the tenant has not paid rent?

(2) Whether to a suit based upon title by a landlord against his ex-tenant art. 139 is the article which applies, or art. 144?

For the purpose of disposing of these two questions it is sufficient to state just two facts. The plaintiff filed the suit among other reliefs for a relief that he was the owner of the property with which we are concerned in this Full Bench. He was the tenant of the defendant and that tenancy terminated on June 11, 1925, and the suit was filed on July 7, 1938. The plaintiff's contention, with which we are now concerned, was that the title of his landlord had become extinguished under s. 28 of the Indian Limitation Act, that a new title was created in him and therefore he was entitled to the declaration which he sought in the suit.

The question that arises for determination is which is the article which would govern a suit which the defendant might file against the plaintiff to enforce his right and recover possession, because under s. 28 of the Indian Limitation Act, at the determination of the period limited by the Indian Limitation Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. Therefore, the question is what is the period laid down in the Indian Limitation Act for instituting a suit for possession as far as the defendant is concerned, because it is on the determination of the period that his right to recover the property would be extinguished and on the extinguishment of that right a new title would be created in the plaintiff which he could assert and in respect of which he could obtain a declaration from the Court.

Now, there can be no doubt that on the determination of the tenancy on June 11, 1925, the plaintiff became a tenant at sufferance, if we might make use of an English expression, or a trespasser. Although his possession was originally lawful, and he entered by lawful demise, at the termination of the tenancy his possession became wrongful and he became a trespasser. Therefore on the determination of the tenancy the right would arise in the landlord to recover possession from him of the property and the period of limitation would be governed by article 139 of the Indian Limitation Act.

Mr. Sukthankar for the respondent has contended that it would be open to a landlord to file a suit merely on title and not as a landlord and thereby attract the application of article 144. Article 144 is a residuary article, and it is a well recognised canon of construction of the Limitation Act that when there is a specific article dealing with a specific subject, that article is to be applied in preference to a general and residuary article like article 144. Therefore, if in a suit for possession it is established that there was a relationship of landlord and tenant between the parties and that relationship has come to an end, then the only article that can apply is art. 139 and not art. 144. It will be apparent that if that is the correct position, we would not be strictly concerned with the question whether on the determination of the tenancy the possession of the tenant would become adverse or not. The rival arguments on this point are that as the tenant on the determination of the tenancy becomes a trespasser and his possession becomes wrongful, that possession is adverse against the landlord. On the other hand, the contention is that although the possession of the tenant may be wrongful, it is not necessarily adverse, and a distinction is sought to be drawn between possession which may be wrongful and not yet adverse. In our opinion it is not necessary to decide that question, because, as I just said, if art. 139 applies to every case where a landlord sues his tenant, then the question whether the possession of the tenant is adverse or not does not arise. The point from which limitation begins to run is the determination of the tenancy, and once the tenancy is determined, it is immaterial and irrelevant to consider what is the character in which the ex-tenant continues to remain in possession.

Our Court almost consistently has taken the view that in a ??? by a landlord against a tenant it is art. 139 that applies, the first case which might be looked at is Kantheppa v. Sheshnppa, a decision of Sir Charles Farran, Chief Justice, and Mr. Justice Candy. There at p. 897 Sir Charles Farran says:

“We are inclined to think that the termination of the period of a fixed ??? where nothing further occurs, is the time from which limitation ??? to run against the landlord within the meaning of article 139 of the limitation Act.”

The expression “where nothing further occurs” is obviously with reference to s. 116 of the Transfer of Property Act, because it is open to the landlord on the expiration of the tenancy of accept rent from the tenant or otherwise assent to his continuing in possession and thereby create a fresh lease under the ??? of that section. But if the landlord neither accepts ??? nor otherwise assents to the continuing of the possession of the tenant, then it is clear that the tenancy expires, limitation begins to run against the landlord under art. 139 and his right to obtain possession from his tenant would be barred after the period of 12 years.

Then we come to a decision of Sir Lawrence Jenkins and Mr. Justice Candy, Chandri v. Daji, where the bench held that where a tenant holds over, he becomes a tenant by sufferance at the determination of the tenancy, and a suit to evict him must be brought within twelve years of that date and Sir Lawrence Jenkins in his judgment says that art. 139 deals with those questions where there has been the relationship of landlord and tenant.

Then we come to two judgments of Sir Amberson Marten in Shravan v. Fattu, and the other in Purshottam v. Vishnu. In Shravan v. Fattu the suit was by the son of an ex-tenant who claimed ownership by virtue of adverse possession and Sir Amberson Marten and Mr. Justice Percival held that on the expiration of the tenancy the possession of the tenant has become wrongful and also that the possession had become adverse within the meaning of art. 144 of the Limitation Act, and as 12 years had expired, the plaintiff had acquired a title by adverse possession. With great respect to the learned Chief Justice, we are unable to agree that on the facts of that case in was at all necessary to requisition the assistance of art. 144. As the relation of landlord and tenant was clearly established the proper article that applied was art. 139 and not art. 144. Of course the Court came to the same conclusion, but we ??? with very great respect, that the decision was not correct in a far as it suggested that art. 144 might apply even in a case of landlord and tenant. But Sir Amberson Marten, again speaking with very great respect, corrected himself in the following year when he delivered the judgment in Purshottam v. Vishnu shifting with Mr. Justice Crump. There again it was a case between a landlord and a tenant. Here it was a converse case. It was a suit by a landlord to recover possession of the premises from the tenant and the defendant set up the plea of limitation, and Sir Amberson Marten reviewing all the authorities of this Court came to the conclusion that it was clear that the article that applied was art. 139 of the Indian Limitation Act, and as the tenant had continued in possession for more than 12 years after the determination of the tenancy, the plaintiff's suit was barred.

What seems at first blush to be a discordant note has been struck in the decision in Ichalal v. Nago. In that case the plaintiff purchased half share in a property from his vendor and then the vendor executed a rent note in respect of that half share. Subsequently the vendor along with the owners of the other half share sold the whole property to the defendant and the plaintiff filed the suit for joint possession against the defendant. The defendant sought to contend that the plaintiff's suit was barred because limitation began to run on the expiration of the tenancy the plaintiff's vendor and as the suit had been filed 12 years after the termination of the tenancy the plaintiff was not entitled to succeed, and Sir Norman Macleod held that the suit was within time since it was governed by art. 144 and not by art. 139 and the defendant failed to prove adverse possession. It will be noticed that Sir Norman Macleod expressly states in his judgment that the plaintiff was litigating his right as a tenant.

We may also point out that Privy Council has accepted the Bombay view as to the application of art. 139 as the correct view. In Ramanuj v. Ramkrishna, a judgment of the Calcutta High Court came before their Lordships and their Lordships in delivering the judgment stated that there was no reason shown why they should disturb the judgment of the High Court, and when we turn to the judgment of the High Court we find that they held that in cases of tenancy by sufferance by a tenant holding ever whose lease had expired, art. 139 applied and the Calcutta High Court referred to the judgment of this Court in Chandri v. Daji with approval and it seems that as the Privy Council approved of the judgment of the Calcutta High Court and the reasoning of it, the statement of the law as laid down in the decision of Chandri v. Daji found favour with their Lordships.

Mr. Sukthankar has relied on another and later decision of the Privy Council in Allah Rakhi v. Mohammad Abdur Rahim. In that case the sajjadanashin of an ancient wakf sued to recover possession of land from defendants with those ancestors the land had been settled as mujawars. This was in 1926. It appeared case the sajjadanashin of an ancient wakf sued to recover possession of land from defendants with whose ancestors the land had been settled as mujawars. This was in 1926. It appeared that the sajjadanashin had dismissed the defendants from being mujawars of the shrine in 1898 but they had remained in possession of the land and had continued to act as mujawars. The High Court of Allahabad affirmed the decree for possession taking the view that no question of limitation arose as s. 10 of the Indian Limitation Act applied. The Privy Council agreed in affirming the decree for possession but on a different ground. Their Lordships held that s. 10 did not apply, but as the defendant had failed to prove adverse possession within art. 144, the plaintiffs were entitled to possession. What Mr. Sukhthankar relies upon is a passage in the judgment of Sir Lancelot Sanderson at p. 58. This is the passage:

“The learned counsel for the appellants referred to article 139 as well as article 144. It may be noted at once that the appellant's plea of adverse possession is obviously inconsistent with the application of article 139, which relates to the case of a landlord suing to recover possession from a tenant.”

If one looks to the findings of fact on which their Lordships arrived, this passage becomes clear. Their Lordships held that the defendant continued in possession as mujawars by the leave and license of the plaintiffs and therefore no question of adverse possession arose. The defendants contended that adverse possession commenced from the very moment when they were dismissed and they refused to give up possession. Obviously, therefore, there could be no question of art. 139 if the defendants relied upon adverse possession from the very first moment of their being in possession after the dismissal, because the very basis of art. 139 is a relationship of landlord and tenant. It is only after that relationship has come to an end that art. 139 becomes applicable. But in the case before their Lordships there was no question of the defendants ever having been the tenants of the plaintiff after they ceased to be mujawars and after they were dismissed they were merely holding possession as licensees. In our opinion therefore when there is a case of a tenant lawfully entering into possession and that tenancy terminating and his possession becoming wrongful, in the case where no new tenancy has been effected by the landlord accepting rent or otherwise assenting to the continuance of the tenancy, then if a suit is filed for possession, the only article that can apply is art. 139 and not art. 144 and limitation in such a case would begin to run from the date when the tenancy was determined and the limitation would be 12 years under that article.

As we have taken the view that a suit by a landlord against his ex-tenant is always governed by art. 139 and as we have indicated earlier in the judgment that the question whether his possession is adverse or not does not arise, we answer question No. 2 submitted to us as follows: art. 139. And with regard to question No. 1 our answer, with respect to the learned Judges who have referred this question to us, is that on the view we have now taken the question does not arise.

Bavdekar, J.:—I would like to add a few words about Ichalal v. Nago, which has really necessitated this reference, because as indicated by me in the referring judgment, our view was that a suit by a landlord against a tenant, whether it was based upon title or whether it was based upon an allegation that a person whom the landlord had let into possession was bound to restore possession to him, was governed by art. 139.

The case of Ichalal v. Nago referred to a suit filed by a plaintiff who had purchased the interest of two of the co-owners in the property in suit. It appears that when the vendors sold that interest to the plaintiff, they simultaneously executed a rent note in favour of the plaintiff and remained in possession till they sold the property along with the other co-owners to the defendant, and even though Sir Norman Macleod said in one part of his judgment that the suit which was filed by the plaintiff was a suit for partition and separate possession of his share against the other co-owners, it was actually a suit for joint possession. This is quite clear from the facts which are set out at the commencement. It is quite clear from the opening paragraph of Sir Norman Macleod's own judgment and it is also quite clear from what Fawcett J. says in his judgment. To a suit by one co-owner against the others for partition and separate possession the article that would apply is art. 144 and no question could possibly arise with regard to the application of art. 139. But the suit was for joint possession by a co-owner. The defendant's case was that he was before the Court in two capacities. First of all he was the purchaser of the interest of the other co-owners. To the extent that he was the purchaser of the interest of the other co-owners he had no defence whatever to the suit. As the purchaser of the interest of the other co-owners he had to concede that the plaintiff or his vendor was entitled to joint possession along with him. But the defendant was also the representative of the plaintiff's vendor who became the plaintiff's tenant after the sale and said that the plaintiff lost whatever interest he had inasmuch as the tenancy in favour of the vendors had expired on August 22, 1904. Subsequently on March 5, 1913, the property was sold by the vendors along with the other co-owners to the defendant and he said that if the suit had been filed for possession by the plaintiff against the vendors, or against a subsequent purchaser from them who was a stranger, the suit would have been barred under art. 139 because the suit would be suit against a tenant or a purchaser from the tenant and the proposition which has now been established is that art. 139 applies not only to a tenant but also to a person who is representative of the tenant, it may be by purchase, it may be otherwise. Sir Norman Macleod, after mentioning that the suit was a partition suit, went on to observe: “What might have happened if he had let a portion of the land which belonged to the tenancy-in-common to an outsider who held over is a question which does not arise.” But with respect the question did arise in a suit for joint possession. It was true that in this case the defendant had purchased not only from the plaintiff's landlords but also from the other tenants-in-common the interest of all of them in the suit property. But he may merely have been a purchaser only from the plaintiff's vendors, and if in that case the suit had been filed by the plaintiff against the defendant and the other tenants-in-common, the defendant could obviously have said that, so far as he was concerned, the suit was barred, because the plaintiff had let the property to his vendors after the sale, the vendors remained in possession after the expiration of the tenancy, and he, being a subsequent purchaser from the tenants of the suit property, as representative of the tenant, was entitled to remain in joint possession along with the other tenants-in-common, if the plaintiff's suit was barred under art. 139. Fawcett, J. dealing with this part of the argument said in his judgment (p. 62):—

“In this suit the plaintiff stated his claim to recover joint possession of the plaint property not as a landlord, but as an owner, and although he does mention that the land was leased to the defendant's predecessor-in-title, yet his claim was clearly brought on the basis of his title as owner.”

The argument was exactly the same as is addressed to us by Mr. Sukthankar that art. 139 applies only when the suit against the tenant is not based upon title. With that argument we are unable to agree. I therefore concur with the answer proposed by my brother the Chief Justice.

Dixit, J.:—I agree.

Answer accordingly.

J.G.R