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PETITIONER: SHRI AJIT CHOPRA

       Vs.

RESPONDENT: SADHU RAM AND ORS.

DATE OF JUDGMENT:       02/11/1999

BENCH: M.Jagannadha Rao, M.B.Shah

JUDGMENT:

     M.  JAGANNADHA RAO,J.

     The  appellant  is  the legal  representative  of  the original plaintiff Sri R.C.  Chopra in the suit bearing Suit No.  25/1 of 1970 on the file of the Senior Sub-Judge, Simla District,  Simla,  in  the State of Himachal  Pradesh.   The present  suit  was  filed by the said Sri R.C.   Chopra  for possession  and  Rs.610/-as past mesne profits.   The  trial Court  decreed  the  suit on 30.11.1976 for  possession  but refused  to pass a decree for mesne profits.  The  defendant appealed  before  the District Court, Simla which  dismissed the  appeal by judgment dated 23.7.1977.  On further  appeal by  the  defendant in R.S.A.  No.70 of 1977, learned  Single Judge  of  the High Court of Himachal Pradesh,  by  judgment dated  29.10.91 allowed the appeal, set aside the  judgments of  the  lower  Courts  and  dismissed the  suit  on  a  new question, namely, that the present suit was not maintainable in  view of Section 47 of the Code of Civil Procedure, as it stood  before  the  1976 Amendment.  The plaintiff  died  on 22.10.85,  during  the  pendency of the the  Second  appeal. This  appeal  by  Special Leave has been  preferred  by  the plaintiff’s legal representatives.

     The  property  in question belonged originally to  one Dewan  Chand  Bhatia of Simla and the present plaintiff  Sri R.C.   Chopra  purchased the same on 18.6.1957 by way  of  a registered  sale  deed.   It appears  that  the  plaintiff’s vendor  Sri  Bhatia  granted  a   lease  in  favour  of  the respondent  -  defendant  on 10.2.1952.  Later,  Sri  Bhatia filed  an eviction petition on 19.7.1955 under Section 13 of the  East Punjab Urban Rent Restriction Act, 1949 on various grounds.  The respondent denied the relationship of landlord and  tenant.  The said contention of the tenant was accepted and  the eviction case was dismissed by the Rent Controller, Simla on 25.9.1956.  The landlord Bhatia’s appeal before the Appellate  Authority  succeeded  and appeal was  allowed  on 30.9.57  holding  respondent was a tenant and  that  grounds existed  for  his eviction.  (It was during the pendency  of that  first appeal that the present plaintiff purchased  the property  from  Sri  Bhatia  on 18.6.1957,  subject  to  the decision  of  the  appeal).  The respondent-tenant  filed  a revision  in  the High Court on 2.1.1958 contending that  he was not a tenant and seeking stay of dispossession which was granted   on  15.1.1958.   Ultimately,   the  revision   was dismissed  by  the  High Court on 19.9.58 holding  that  the

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respondent  was a tenant.  Three months time was granted for vacation  of  the  premises.   The eviction  order  was  not executed  for quite some time but the present suit was filed by  the appellant (purchaser from Mr.Bhatia) within 12 years from 2.1.1958, the dismissal of the tenant’s revision.

     It  is  the  case  of   Sri  R.C.Chopra,  the  present plaintiff  that as a purchaser from Sri Bhatia, by sale deed dated  18.6.1957  he tried to evict the respondent but  that the  respondent  entreated  that  he be  not  evicted.   The present  plaintiff  was  in Government service  and  was  at Bombay  and  was  being  transferred from  place  to  place. Therefore,  it is said, the plaintiff agreed afresh to allow the  respondent to continue as his tenant.  But, it is said, the  respondent  was  not paying rent and this  led  to  the appellant giving a notice on 24.7.1969 to the respondent for eviction  and demanding arrears of rent.  There was no reply from the respondent.

     At  that stage i.e.  after 24.7.1969, admittedly,  Sri R.C.Chopra  the  present  plaintiff filed a  fresh  eviction petition  against the respondent, under the East Punjab Rent Restriction   Act,  1949.   In   that  eviction  case,   the respondent  filed  a  counter contending that he was  not  a tenant,  and  that he was not liable to pay any  arrears  of rent and that he had acquired title by adverse possession.

     The  present  suit for possession based on  title  was therefore  filed  on 5.8.1970 and also seeking  Rs.610/-  as compensation  for use and occupation.  The respondent  filed written  statement claiming adverse possession on the  lines of  his  counter  in  the  second  eviction  petition.   The appellant  filed  replication on 28.10.1970.  The  appellant amended  the plaint claiming compensation for a period of  3 years  from 3.8.70 to 3.8.73.  The trial Court and the first Appellate  Court, decreed eviction and rejected the plea  of adverse  possession  because the suit filed on 5.8.1970  was within  12  years from 19.9.1958, on which date the  earlier Rent Control Case between the respondent and the plaintiff’s vendor,  Sri Bhatia was concluded by way of dismissal of the tenant’s  revision.   On appeal by the defendant,  the  High Court  of Himachal Pradesh, raised a new point which was not raised  in  the lower courts and held that the present  suit was  one,  "in reality", in the nature of execution  of  the earlier eviction order in the rent control case filed by Mr. Bhatia  before the Rent Controller and that therefore,  this suit  stood  barred  by  Section 47 of  the  Code  of  Civil Procedure  since  all  matters   concerning  the  execution, satisfaction  and discharge of the previous suit were to  be agitated  in  the  execution  proceedings  in  the  previous eviction  matter and not by a separate suit.  In this appeal before  us by Sri R.C.Chopra’s legal representatives,  their learned counsel contended that the point under Section 47 of the  Code  of  Civil Procedure was not raised in  the  lower Courts,  nor  in the grounds of Second appeal and  that  the High  Court  ought not to have allowed the said question  in the  Second Appeal.  It was argued that the suit was not "in reality" one in the nature of execution of the earlier order of  eviction in favour of the plaintiff’s vendor, Sri Bhatia in  the rent control case and was not barred.  It was argued that  this  suit  was based upon a fresh  cause  of  action, namely,  the denial of Mr.  Chopra’s in the counter filed in the second eviction case of 1969.  Assuming that the adverse possession  started, it could not have started earlier  than 19.9.1958  when  the  tenant-respondent’s  revision  in  the

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earlier  eviction case was dismissed.  The present suit,  it is  pointed out has been filed within 12 years from  19.9.58 on 5.8.70.

     On the other hand, learned counsel for the respondent, contended  that  the  question  of  adverse  possession   or limitation  of 12 years apart, the basic objection was  that the  suit  was  not maintainable in view of Section  47  CPC inasmuch  as this suit was in the nature of execution of the earlier  eviction order obtained by the plaintiff’s  vendor, Sri Bhatia, against the respondent in the rent control case. The  limitation,  it  was  said started  from  the  date  of purchase  by  the  plaintiff  sri R.C.   Chopra  on  18.7.57 because  Sri  Chopra  did  not get himself  impleaded  as  a co-plaintiff  in  the  earlier eviction case  filed  by  Sri Bhatia.   It was contended that in any event, the decree for eviction  in  the earlier case became executable even as  on 30.9.57  when  the  Rent  Appellate  Authority  allowed  Sri Bhatia’s  appeal and ordered eviction.  The plaintiff  could exclude  only  the period from 15.1.58 to 19.9.58  when  the respondent  obtained  stay of eviction from the High  Court. Therefore,  the  present suit was both not maintainable  and was  also  barred  by time.  On the above  contentions,  the following  points arise for consideration:  (1) Was the High Court right in entertaining a new point for consideration in the Second appeal and treating it as a ’substantial question of  law’  and allowing the appeal on that ground?   (2)  Did limitation start against the appellant from 18.7.57 when the plaintiff  purchased from Sri Bhatia or from 3.9.57 when the Rent  Appellate  Authority,  in  the  earlier  case  ordered eviction in favour of Sri Bhatia?  (3) In any event, was the present  suit "in reality" one in the nature of execution of the  first  rent  control  eviction order  obtained  by  the plaintiff’s vendor Sri Bhatia against the respondent and was it therefore barred by Section 47 CPC?  (4) If the order for eviction  in  the rent control case was not executed  within limitation,  could a fresh suit lie for eviction and was  it be barred by Section 47 CPC?  POINT NO.1 Learned counsel for the  appellant placed reliance on the decision of this Court in  Kshitish Chandra Purkait Vs.  Santosh Kumar Purkait  and Ors.  [1997 (5) SCC 438] to say that under sub-clause (5) of Section  100  of the Code of Civil Procedure, as amended  in 1976,  the Second Appellate Court could not have taken up  a new  question  of  law  without stating  whether  it  was  a substantial question of law.

     We  do  not  think it necessary to decide  this  point because  we  feel  that this appeal can be  disposed  of  in favour  of the appellant on Points 2, 3 and 4, even assuming that  the  point raised by the High Court under Section  47, C.P.C.  is a substantial question of law.  POINT NO.2:

     We  shall here assume that after the dismissal of  the revision petition on 19.9.58 of the respondent, there was no fresh lease between the present plaintiff and the respondent in  1959  even  though it was so contended  in  the  present plaint.

     In  our  view,  during  the period of  3  months  from 19.9.58  granted by the High Court in the rent control  case to  the  respondent  to vacate, the respondent  was  in  the position  of  a licensee as per the permission of  the  High Court i.e.  upto 19.12.1958 and not as a trespasser.  In the earlier  Rent Control case filed by the present  plaintiff’s vendor,  Sri Bhatia on the basis of tenancy, even though the

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said  relationship was denied by the respondent and the Rent Controller  accepted  that  plea  of the  tenant,  the  Rent Appellate  Authority  declared  that there was  in  fact,  a relationship  of landlord and tenant between the parties and ordered  eviction  on  30.9.57.   In   our  view,  the  said declaration as to the nature of the relationship between Sri Bhatia  and the respondent would be effective from the  date of  filing  of the eviction case on 19.7.55 by  Sri  Bhatia. Hence,  there  could  not  be any  adverse  possession  from 19.7.1955   merely  because  the   respondent   denied   his relationship as tenant from 1955 in the first eviction case. When  the High Court in revision confirmed the said  finding of  the Rent Appellate Authority on 19.9.58, the High  Court too  put  its seal of approval that such a  relationship  of landlord  and  tenant  existed from 1955 till  the  date  of disposal  of  the  revision petition.   We  are,  therefore, clearly  of  the view that the respondent was a tenant  upto 19.9.1958  when  the  revision  was disposed  of  and,  that thereafter  the respondent was a licensee for a period of  3 months  upto  19.12.1958.  The adverse possession,  if  any, could  never have therefore started before 19.12.1958.   The suit filed on 5.8.1970 was in time.  It was, however, argued for  the  respondent that the relationship of  landlord  and tenant  stood determined on 30.9.57, once the Rent Appellate Authority  ordered  eviction.  We are again unable to  agree with  this contention.  The relationship as tenant continues throughout  the proceedings before the Rent Controller, then during  the  pendency of the appeal and till  the  statutory revision  under the Act is disposed of.  It may be that in a given  case  the Rent Controller may pass an eviction  order and  in another case, the Appellate Authority may do so  and in  yet  another case the revisional authority may pass  the eviction  order.  It may also be that, in a particular case, there  is a remand order at some stage and the authority  to which  the  matter  is remanded might come to  a  conclusion different  from  the  one  it   arrived  at  before  remand. Throughout  the  proceedings,  the  relationship  as  tenant continues  till  the  eviction  order   ;is  passed  by  the appellate   or   statutory    revisional   authority.    The relationship  does not go on oscillating during the pendency of  the  proceedings  depending  upon  whether  eviction  is granted  or not in between.  In that view of the matter, the contention  for the tenant that the relationship of landlord and  tenant came to an end on 30.9.1957 when the  landlord’s appeal was allowed by the appellate authority and that there was no such relationship during the pendency of the tenant’s statutory revision till 19.9.1958, must stand rejected.

     We finally come to the contention that at any rate the respondent’s adverse possession started as against Mr.Chopra (purchaser  from  Mr.  Bhatia) from the date of sale by  Sri Bhatia  to  the  plaintiff  on   18.7.57,  inasmuch  as  Sri R.C.Chopra  did not get impleaded in the first eviction case soon  after  his  purchase.  We are unable  to  agree.   Mr. Chopra’s  purchase  was  subject  to   the  result  of   the litigation between the vendor Sri Bhatia and the respondent. That  would mean that the plaintiff’s right to possession of the  property  purchased, was by agreement with the  vendor, dependant upon the result of the pending proceedings and the plaintiff  had  no  immediate   right  to  possession.   The defendant continued to be in the position of a tenant vis-a- vis  the  vendor and vis-a-vis the premises even  after  the plaintiff’s purchase.  If the respondent was a tenant of the premises  till  the revision was disposed of, he  could  not claim  that he was in adverse possession against Mr.  Bhatia

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or against Mr.  Bhatia’s vendee when the latter had no right to   immediate   physical   possession.    Therefore,   this contention  of  the respondent, cannot be  accepted.   Thus, even  if  the  respondents  adverse  possession  started  on 19.12.1958,  when the three months time granted by the  High Court  expired, or even if it be that the adverse possession started  on 19.9.58 when the revision was rejected, the suit for  possession  filed on 5.8.70 was well within  12  years. The  adverse  possession did not start earlier.  Point 2  is decided  in favour of the appellant.  POINT 3:  We next come to  the question whether the suit was not maintainable under section  47 CPC as held by the High Court for the first time in Second Appeal.

     The  suit  having been filed on 5.8.1970,  before  the Amendment  of the Civil Procedure Code under Central Act  54 of  1976,  we go by the unamended section 47.  That  section read as follows:

     "47.  Question to be determined by the Court executing decree:-

     (1)  All questions arising between the parties to  the suit   in   which   the  decree   was   passed,   or   their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

     (2)  The  Court  may, subject to any objection  as  to limitation  or  jurisdiction, treat a proceeding under  this section  as  a  suit or a suit as a proceeding and  may,  if necessary, order payment of any additional court fees.

     (3)  Where a question arises as to whether any  person is  or  is not the representative of a party, such  question shall,  for  the purposes of this section, be determined  by the court.

     Explanation:   For  the  purposes of this  section,  a plaintiff  whose  suit  has been dismissed and  a  defendant against  whom a suit has been dismissed, are parties to  the suit."

     It  will  be  noticed that under sub-clause  (1),  all questions  arising between the parties to the suit in  which the  decree  was  passed,  or  their  representatives,   and relating  to the execution, discharge or satisfaction of the decree,  shall have to be determined by the Court  executing the decree and not by a separate suit.

     The  High  Court  observed:  "Reading  of  the  entire plaint  would  show  that  plaintiff claimed  a  decree  for possession  by  "virtually" praying to enforce the order  of ejectment  and on the basis of the plea of defendant being a tenant  in  the  premises by virtue of a fresh  contract  of tenancy".   This  view, in our opinion, cannot be  accepted. The plaint states in para 8 as follows:

     "That  the  defendant did not care to pay any rent  of the said quarters to the plaintiff taking undue advantage of the plaintiff’s absence from Simla because the plaintiff was in  Government service in Maharashtra state.  The  plaintiff initiated  proceedings  for ejectment of the defendant  from the  said  quarters under section 13 of the East Punjab  Act No.III  of  1949,  on the ground of non-payment of  rent  in

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respect  of  the  said  quarters  before  the  Learned  Rent Controller.  Simla and in the said proceedings the defendant has  set  up a false and frivolous plea of ownership of  the said  quarters  by adverse possession.  The  plaintiff  has, therefore,  thought  it  advisable  to   file  a  suit   for possession  of  the  said  quarters   by  ejectment  of  the defendant  therefrom,  whose occupation thereof till  13-11- 1958 is established as a tenant therein by judicial findings which  are binding on the defendant." The defendant admitted in  para  8 of his written statement in the present suit  as follows:

     "para  8  of  the plaint is also  emphatically  denied except  the  pendency of the ejectment proceedings  and  the reply submitted thereto by the replying defendant"

     From  the aforesaid averments in para 8 of the plaint, it  is  obvious  that the plaintiff referred  to  the  fresh eviction  case  filed  by Mr.  Chopra in  1969  the  present plaintiff,  after the legal notice dated 24.7.1969.  It  was in  that fresh rent control case that the respondent filed a counter stating that he was the owner of these four quarters and  that  he  had prescribed title by  adverse  possession. This  plea of the plaintiff was indeed admitted in para 8 of the  present  written statement.  Thus, the present suit  is not  one  for execution of the eviction order passed in  the first  rent control case.  In our view, the High Court  was, therefore,  wrong  in  treating  the  present  suit  as  one ‘virtually’ for execution of the order of eviction passed in the  earlier rent control case.  Hence the ban under section 47  cannot  apply.   Point  3 is decided in  favour  of  the appellant.   Point  4:  This point is crucial to  the  case. Now,   if  a  suit  for   possession  is  decreed  and   the decree-holder  gets  possession  and thereafter there  is  a fresh  dispossession, there is no difficulty in holding that a  fresh  suit  is maintainable for ejectment,  because  the fresh  trespass  creates  a  fresh cause  of  action.   This principle  is  stated  in Dhanraj Singh and Ors.   Vs.   Mt. Lakrani Kuar (AIR 1916 All.  163) referred to by the learned Single  Judge in the judgment under appeal.  But that is not the  only situation in which it can be said there will be  a fresh  cause of action.  There can be other situations where a fresh cause of action arises.

     Where  an earlier decree based on title for  ejectment is not executed in time but a fresh suit is however filed on the  same  basis  against the same defendant  for  ejectment relying  on  the earlier judgment, it has been held  that  a second  suit  does not lie.  This is based on the  principle that  no second suit lies merely on the basis of an  earlier judgment if the time for execution of the earlier decree has become  barred.   The cases relied up by the High  Court  in Ramanand  and  Ors.  Vs.  Jai Ram and Ors.  ( AIR 1921  All. 369),  Sovani Jena Vs.  Bhima Ray (AIR 1922 Pat.  407),  Mal Singh Bika Singh and Ors.  Vs.  Mohinder Singh Mehar Singh ( AIR  1970  P & H 509) belong to this category.  But, in  the present  case, they are distinguishable.  The plaint  before us is not based on the decree obtained in the first eviction case  filed  under  the Rent Control law.  We may  add  that Chhagan  Lal  Vs.  The Indian Iron and Steel Co.   and  Ors. (AIR 1979 Cal.160) also belongs to this category.

     We  shall  next turn to cases more directly in  point. These   are  where  the  earlier   suit  is  based  on   the relationship  of landlord and tenant and the latter suit  is

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based  on title.  In Kutti Ali Vs.  Chindan and Anr.   (1900 ILR  (23) Mad.629), the earlier suit of 1890 was brought  by the landlord against the defendant, on the basis of a lease. The decree was allowed to become time barred as no execution petition  was filed within 3 years.  A fresh suit was  filed in  1898  on  the basis of title for eviction  The  Division Bench  held:   "The defendants being tenants in 1890  cannot have  acquired  a prescriptive title in 1898 when this  suit was  brought.   The  plaintiff is,  therefore,  entitled  to recover the land upon his title independently of any letting by  him".  Omission to sue on title in the earlier suit  was not ( constructive ) res judicata.

     This  judgment,  in Kutti Ali unfortunately,  suffered several  ups  and downs.  In a Full Bench of five Judges  in Vedapuratti  Vs.  Vallabha Valiya Raja and Ors.  ( 1902  ILR (25) Mad 300) the above case was held to be wrongly decided. In that case the first suit for redemption of a mortgage was decreed  but execution got barred by time and a second  suit for  redemption  was  held   not  maintainable.   Then  came Mayankutti Vs.  Kunhammad and Ors.  ( 1918 ILR (41) Mad.641) (  a case relied upon in the judgment of the High Court  now in appeal before us).  There the plaintiff’s father had sued the  defendant  on  a lease deed and obtained a  decree  for possession  directing  payment  of  compensation  under  the Malabar  Compensation  for  Tenants Improvements  Act.   The execution got barred by time and then a fresh suit was filed on  the  genuine title.  The suit was held barred  following the Full Bench in Vedapuratti and dissenting from Kutti Ali. One   peculiar  feature  of  this   case  which   makes   it distinguishable  is  that the Malabar Act Section  5  stated that, notwithstanding, the determination of the tenancy, the tenant was entitled to remain in possession until evicted in execution  of the decree and Section 6(4) stated that  every matter arising under Section 3 was to be deemed to relate to execution.   That would mean the statutory tenancy continued even  after  the  eviction order till the  compensation  for improvement was paid to the tenant.

     But  after  Raghunath  Singh and  Ors.   Vs.   Hansraj Kunwar  and Ors.  ( 1934 ILR (56) All.  561) was decided  by the  Privy  Council, Vedapuratti stood impliedly  overruled. Their  Lordships held in that case that when execution of  a decree  for  redemption was allowed to get barred,  a  fresh suit  would lie.  The important principle laid down by  Lord Russell  of  Killowen in regard to the right to  redeem  was that  the "right was not barred by res judicata".  It  meant that  the  Full  Bench case in Vedapuratti  which  overruled Kutti  Ali  was  no longer good law.  This  position  became clear  when a similar question arose before a Full Bench  of the  Madras High Court in Viroopakshan Vs.  Chambu Nayar and Ors.   (1937  ILR  Mad.  545).  That was again a case  of  a second  suit for redemption, the execution in the first suit having  become barred.  Varadachariar J ( as he then was  ), after  referring  to  the  decision  of  the  Privy  council observed  that the Full Bench decision in Vedapuratti was no longer  good  law and a second suit lay  "unless  .......the right  of  redemption  has been extinguished in one  of  the modes  contemplated  by the statutes and that the mere  fact that  a decree for redemption obtained on a former  occasion has  not  been executed will not prevent the mortgagor  from maintaining  a subsequent suit for redemption".  The  result was that with the overruling of Vedapuratti, the decision in Kutti  Ali revived.  To the extent Mayankutti Vs.  Kunhammad ( 1917 ILR (41) Mad 641) ( which was relied upon by the High

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Court in the judgment under appeal before us) dissented from Kutti  Ali, the said dissent would therefore no longer  hold good.   That is how, Kutti Ali still remains and governs the situation  on the facts before us.  The facts before us  are again  similar  to those in Amina Vs.  Ahmad ( 1949 (1)  MLJ 465).   That  decision is similar to Kutti Ali and the  said ruling  was followed.  There the first suit was for eviction solely  based  on tenancy and the execution was  allowed  to become time bared as in the case before us.  The second suit for  eviction  based on title was held maintainable and  not barred.  Satyanarayana Rao, J.  observed:

     "On  the  principle of the decision in Kutti  Ali  vs. Chindan,  I think that the second suit based on title is not barred.....A  suit  based on tenancy is very narrow  in  its scope  and  it is unnecessary very often for  the  plaintiff landlord to plead his title;  it is enough for him in such a suit  to  prove  the lease and the tenancy and that  it  was validly terminated."

     In  that case too, the fresh suit was filed within  12 years  from the date fixed in the earlier compromise decree. The   possession  during  the   period  granted  under   the compromise  was treated as permissive.  A similar  situation arose again in Madhavan Variar vs.  Chathu Nambiar [1950 (2) MLJ 501] before Satyanarayana Rao and Viswanatha Sastri, JJ. They  observed  (p.504) that "as the cause of action in  the present  suit was different from the cause of action in  the earlier  suit,  the decision in Mayan Kutti vs.   Kunhammad, had no application".  In our view, the decision in Kutti Ali and  in  Amina  are  directly in  point  and  are  correctly decided.   Both  relate to an earlier suit based on a  lease when  the  execution of the decree was time barred  and  the second  suit  was based on title.  The second suit was  held neither  barred by section 47 CPC nor by section 11 CPC.  So far  as  mortgage  cases are concerned, the  position  stood settled  long  back by the decision of the Privy Council  in Raghunath  Singh’s  case as explained in the Full  Bench  in Viroopakshan.   In  fact,  this  Court  approved  the  Privy Council  judgment in Raghunath Singh and held that a  second suit  for  redemption was maintainable even if  the  earlier decree  for  redemption  stood barred by  limitation.   (see Mhadaagonda  Ramgonda  Patil and Ors.  Vs.  Shripal  Balwant Rainade  and Ors.  [1988 (3) SCC 298], Maganlal Vs.  Jaiswal Industries, Neemach and Ors.  [1989 (4) SCC 344] and Harbans Singh  and Anr.  Vs.  Guran Ditta Singh and Anr.  [1991  (2) SCC  523].  We, accordingly hold on the above line of  cases that the present suit is not barred by Section 11 or Section 47 of the Code of Civil Procedure.

     We  have,  in  the above discussion, covered  all  the cases  referred  to by the High Court in the judgment  under appeal except one, namely, Dinu Yesu Desai Vs.  Shripad Baji Carware  (  AIR  1919 Bom.34).  That case, in our  view,  is clearly  distinguishable  because  in the first  decree  for redemption   which  stood  barred  by  time  for   execution purposes,  it was also stated that the plaintiff’s "right to redeem shall be for ever barred".  In fact, in that case, on that   ground  the  High   Court  distinguished  Ramji   Vs. Pandharinath (1918 ILR (43) Bom 334 (SB)) where there was no such  clause.  In Ramji, second suit for redemption was held maintainable as in the Privy Council case and Vedapuratti of the  Madras  High Court was clearly dissented.   Hence  Dinu Yesu  Desai  is clearly distinguishable and does not  apply. In  principle,  if  the second suit in redemption  cases  is

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maintainable  "unless  the  right  to  redeem  itself  stood barred", on the same parity of reasoning, the second suit on title (where the earlier decree on lease stood barred) would be maintainable "unless the title itself stood barred".

     As  stated under Point 2, the second suit on title was filed  on 5.8.70 within 12 years of the commencement of  the adverse  possession on 19.12.58 i.e.  before 19.12.70.   The High  Court  was  in  error  in holding  the  suit  was  not maintainable.   The  result is a judgment and decree,  which was  passed in a previous suit under the Rent Control Act by which it was held that respondent was tenant and that he was required  to  vacate the premises on or  before  19.12.1958, would not bar a fresh suit for recovery of possession from a tenant.  Reason being that the tenant has not acquired title over  the  property by adverse possession.  It is true  that the  appellant could have executed the decree passed in  the said  suit.   He  had not executed the same on  the  alleged ground   that  there  was  a  fresh  agreement  of  tenancy. Whatever  may be the position, after lapse of three years it was  not  open to the appellant to file an  application  for executing  the  said decree under the Limitation Act,  1908. Still  there  is  no  bar under the Rent Act  or  under  the Limitation  Act, 1908.  Still there is no bar under the Rent Act  or under the Code of Civil Procedure for filing a  suit for  recovery of possession from the tenant, who had  failed to  deliver  the possession on the basis of a decree  passed against  him.   Unless, the defendant -  tenant  establishes that  he  has become owner of the suit property  by  adverse possession,  the suit filed by the owner on the basis of his title  cannot be dismissed despite the fact that application for  the  execution of the decree passed under the Rent  Act was  barred  after lapse of three years.  The title  of  the plaintiff over the suit property was not extinguished (i) by the act of the parties including adverse possession, (ii) by the decree of the Court or (iii) by not executing the decree which  was  passed  in  a previous suit.  If  there  is  any agreement  between the parties after passing of the  decree, permitting  the  tenant to continue in the premises, he  may either  be  a tenant, licensee or a  trespasser.   Presuming that  no  fresh tenancy was created or license  was  granted then  also respondent has failed to acquire title by adverse possession  on the date of the suit i.e.  5.8.1970,  because as  per the decree he was entitled to occupy the premises up to  19.12.1958 as a tenant.  By lapse of time, plaintiff has lost  right  to  execute the previous decree  as  it  became time-barred but has not lost the title.  Unless the title is extinguished,  second  suit  by the owner  if  filed  within period of limitation is not barred.

     We  allow  the  appeal and restore the decree  of  the eviction  as  granted by the trial Court and as affirmed  by the  first  appellate Court.  There will be no order  as  to costs in this appeal.