Hirjee v Mistry (C.A. 4/1936.) [1936] EACA 71 (1 January 1936)

### COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HALL, C. J. (Uganda); and Law, C. J. (Zanzibar).

## ABDULLA REHMTULLA WALJEE HIRJEE Appellant (Original Plaintiff)

#### 11.

# BAPUJI COWASJI MISTRY, Respondent (Original Defendant). $C. A. 4/1936.$

Limitation—Adverse possession—Landlord and tenant—Tenant remaining in possession after expiration of term without paying rent—Possessory title—Registration—Indian Limitaton Act, Sch. II, Art. 139—Crown Lands Ordinance (Cap. 140) ss. 101, 102, 103, 107.

I. held certain lands under lease from the Crown. In 1907 he sub-leased portion to the respondent for a term which expired on 31-12-1913: no rent under the sub-lease was paid after 27-7-1910. In December 1933 the interest of I. became vested in the appellant, who in October 1935 instituted proceedings against the respondent claiming, inter alia a declaration of his title to the premises, and payment of certain sums paid by him for rent, rates and taxes due in respect of the premises since $1 - 12 - 1933.$

$Held$ (18-8-36).—

(1) That the right of the appellant to the premises was barred by limitation.

(2) That, though the term "mutation of title" in the Crown Lands Ordinance $(Cap. 140)$ may include the acquisition of a title by adverse possession, such a mutation is not registrable.

(3) That, the payments made by the appellant were made primarily for his own benefits and that he was not entitled to claim repayment thereof under Sections 69 or 70 of the Indian Contract Act.

(Judgment of Horne J. affirmed.)

(The following statement of facts is taken from the judgment of Law $C. J.$ :—

On the 1st January, 1904, one Imtiazali obtained a Crown lease of one acre and two roods for a period of ten years, which, in October, 1909, was surrendered by him in exchange for a ninety-nine year lease, with effect from the 1st October, 1909, in favour of himself and his son Yacobali trading as Imtiazali On the 12th January, 1907, before this exchange, and Son.

Imtiazali had sub-leased a portion of that area, namely 50 feet by 100 feet, to the respondent for the residue of the ten-year term less one day, that is to say, till the 31st December, 1914. On the 27th July, 1910, Imtiazali and Son made another sublease to one Narshi Devji, whereupon respondent ceased to pay rent to them on the grounds that a portion of the premises which they had previously sub-leased to him had been included in the area sub-leased to Narshi Devii. Thereafter Imtiazali died, and Letters of Administration were granted to Yacobali on the 26th October, 1916. The firm of Imtiazali and Son, however, continued as such, and, on the 16th March, 1923, by the affidavit of Lahoriram, one of the partners, the sub-lease to Narshi Devji was declared to have become extinguished. On the 22nd October, 1931, the ninety-nine year lease was mortgaged to the appellant, into whose hands it finally passed on the 1st December, 1933. The foregoing is shortly a history of the property under consideration.

### Daly for the Appellant.

The finding that the respondent had acquired a title by adverse possession was wrong. The law of limitation applicable is the Indian Limitation Act, 1877, and not the Limitation Ordinance, 1934, see section 39 of the Limitation Ordinance, 1934.

The respondent at the date of termination of the lease under which he held from the appellant became a tenant by sufferance or by permission, so time did not commence to run against the appellant until the termination of such tenancy by sufferance or permissible occupation, article 139, Indian Limitation Act. A'dimulam v. Pir Ravutham (8 Mad. 424), Gobind Lal $\dot{v}$ . Debendronath (6 Call. 311), Prem Sukh v. Bhupia (2 All. 517) and Huronath Roy v. Jogendur Chunder Roy (6 W. R. 218). Assuming that the respondent had acquired a possessory title, such title, not being registered, was of no avail against a bona fide purchaser for value without notice. Crown Lands Ordinance (Cap. 140), section 101.

In any event the respondent was not entitled to any larger area than that proved to have been actually occupied by him. Seddon v. Smith (1877) 36 L. T. 168 C. A.), Hassanali Mamuji v. Alibhai Ebrahimji Dar and Sons (2 E. A. C. A. 111).

The appellant, having paid the rent, rates and taxes in respect of the area claimed by the respondent, was entitled to be refunded by the respondent all payments made by the appellant for such purposes in the event of the respondent establishing his title to such area, Indian Contract Act, sections 69 and 70. N. K. Bose v. M. M. Bose (1881) 7 Cal. 573) and D. M. Roy v. S. M. Roy (1893) 21 Cal. 142).

## Budhdeo for the Respondent.

The finding of fact by the learned trial judge that respondent had acquired a title by adverse possession should not be upset.

There is no evidence of any affirmative permissive act. The lease expired by efflux of time in 1913, section 111, Transfer of Property Act. 1882, and the appellant's title became barred in 1925 and cannot be revived. Arts. 139 and 28. Indian Limitation. Act 1877. A'dimulam v. Pir Ravutham (supra) was overruled by Pusa Mal v Bakhsh (31 All. 574) which was followed in Vadapalli Narasimham $v$ . Dronamrajo Sectharamaurthy (1908) 31 Mad. 163), and Shettai v. Chickaya Hegade (25 Mad. 507).

The appellant is not a purchaser without notice. The title was extinguished in 1925 and the mortgage to appellant was made in 1931. The appellant had constructive notice.

The whole area comprised in the lease became barred. The appellant took no steps to recover any of it.

The question of registration does not arise because the: appellant cannot bring suit. See sec. 28 of the Indian Limitation Act. There is nothing in the Crown Lands Ordinance (Cap. 140) to compel registration of a possessory title. It provides no machinery for such registration. The power to lodge caveats. under section 118 is merely permissive. The title is extinguished and so there is nothing to register and nothing to pass. The case of The Belize Estate and Produce Co., Ltd. v. Quilter $(1897$ A. C. $367)$ is in point.

The appellant is not entitled to salvage for rates and taxes. paid. Section 69 Indian Contract Act cannot apply where the appellant disputes the respondent's title nor can section 70 apply because the appellant paid on his own account and for his own purposes. He did not pay for the respondent.

SIR JOSEPH SHERIDAN, C. J.—The all important provision of law in this case is Article 139 of the Indian Limitation Act. which provides that in a suit by a landlord to recover possession. from a tenant, time begins to run against the landlord as from the date of the termination of the tenancy, the period of limitation being twelve years. The lease in this case determined by efflux of time on the 31st December, 1913. Applying that provision to the facts of this case, the appellant's suit became timebarred on the 31st December, 1925. Mr. Daly argued for the appellant that after the termination of the term a tenancy on. sufferance or of a permissive character arose and quoted authorities in support of his argument, which I have considered. Mr. Budhdeo, on the other hand for the respondent, cited other and more recent authorities according to which the article in. question definitely limits the right of the landlord to bring a suit to twelve years from the date of the termination of the

term, unless there is a fresh tenancy created through the landlord assenting to the overholding as provided by section 116 of the Transfer of Property Act, the provisions of which are as follows:-

"If a lessee or under-lessee of property remains inpossession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."

On the facts of the present case no fresh tenancy has been created within the meaning of section 116. I will refer to only one case on the subject for in my opinion it contains all that it is necessary to say, Pusa Mal v. Bakhsh (31 All. 514). In that case the principle adopted in Adimulam v. Pir Revuthan (1885, 8 Mad. 424) where it was held that if a tenant for years holds over in British India time does not begin to run against the landlord until the tenancy on sufferance expired was overruled, the judgment stating: "The principle adopted in the ruling above-mentioned appears to be that directly the term for the lease expired a new tenancy arose, viz. a tenancy on sufferance and that the limitation set forth in Article 139 Schedule II of the Limitation Act would not begin until the second tenancy came to an end... We are unable to agree with the view that a tenancy on sufferance is such a tenancy as is contemplated by Article 139. In the case of such tenancy there is no privity between the parties. The so-called tenant, on sufferance, is one who continues in possession after the expiration of a lawful There is very little difference between him and a trestitle. passer." The same ruling was considered by the same High Court in Vad Palli Narasimham v. Dronamraju Seetharamamurthy (1908, 31 Mad. 163) and it was held that that decision could no longer be treated as good law following the view expressed in Seshamma Shettai v. Chickaya Hegade (25 Mad. 507) that in a suit by a landlord to recover possession from a tenant for a term of years time begins to run under Article 139 from the expiry of the term which must be held to be the time when the tenancy is determined within the meaning of the Article. Numbers of cases are referred to in the judgment as showing that different Indian Courts have arrived at the same conclusion and the judgment ends with: "From what has been noted above it is clear that the rulings are all against the appellant's contention except that in Adimulam $v$ . Pir Revuthan (supra) from which the Madras High Court has itself expressly dissented in a subsequent ruling". I find that the appellant's suit is time-barred.

My finding on the issue of limitation is, in my opinion, conclusive on two other points raised by Mr. Daly, viz. registration and area. Inasmuch as the appellant is barred from bringing a suit the effect of which is that his right to the property is extinguished (section 28 Indian Limitation Act) the question of registration does not arise, and as the area sought to be recovered is part of the area leased the extinguishment of the appellant's right applies to the whole of that area. There remains one matter for consideration and that is the claim for salvage in respect of rates and taxes paid. As to this it has been argued that section 69 or 70 of the Indian Contract Act applies. The former section refers to reimbursement of a person paying money due by another in payment of which he is interested. This section clearly does not apply to the facts of this case where the appellant is disputing the title of the respondent to the property in respect of which the rates and taxes were paid. Section 70 refers to the obligation of a person enjoying the benefit of a non-gratuitious act. This section I also find to be inapplicable to the facts of the present case where there never was any question of the appellant doing anything for the respondent. That is the last thing that would occur to his mind. The appeal fails on all grounds and is dismissed.

HALL, C. J.-I have had the advantage of reading the judgment of the learned President in this appeal. As I am in general agreement with it, I feel it unnecessary to travel entirely over the ground covered by him and, therefore, propose to devote myself to the important question raised in this appeal under the Crown Lands Ordinance (Cap. 140).

Mr. Daly, for the appellant, has argued that the title by adverse possession alleged to be in the respondent, in order to be efficacious, must have been registered and that, obviously, the object of the Ordinance was, inter alia, to get all titles of whatsoever nature on the register so as to lend security to a registered proprietor and others.

Section 101 of the Ordinance reads: -

"All transactions entered into, affecting or conferring or purporting to confer, declare, limit or extinguish any right, title, or interest, whether vested or contingent, to. in or over land registered under this part (other than a letting for one year only or for any term not exceeding one year) and all mutations of title by succession or otherwise shall be registered under this part".

Mr. Daly has not sought to make out that title by adverse possession is a "transaction", but submitted that the obtaining of such a title is a "mutation of title." Mutation is change not creation of a new title... But even if the expression "mutation" of title" is to have a wider meaning so as to include the acquisi-

tion of title by adverse possesion then such a mutation is incapable of registration until there is an Order of a competent Court. There is no provision enabling a person who claims by adverse possession to register his title under the Ordinance. He is under no compulsion to enter a caveat"

In my view, "mutation of title" is not a creation of title, for a title could only be "created" by the Crown, but rather a change of substitution of title by the respondent displacing the $appellant.$

Section 107 deals with "mutation of title" and reads:-

"Any person who shall acquire any right title, or interest in or to or over any land registered under this part on the death, bankruptcy, or liquidation of any person, or under a certificate or order of, or on the sale by any Court, shall send to the registry a memorandum in the prescribed form for registration together with prescribed fee for such registration".

Not a word in the section as to what is to be done in the event of an acquisition of title by adverse possession. Section 102 says that no evidence shall be receivable in any civil Court of sales, leases or other transfers inter vivos of lands registered under Part XI of the Ordinance unless such sale, lease or other transfer is effected by an instrument in writing and such instrument has been registered under that Part. The section also deals with liens, mortgages or charges, but, again, not a word as to title by adverse possession.

Section 103 deals with the effect of non-registration. It reads: —

"Every document executed and every will of a person dying creating, declaring, assigning, limiting or extinguishing any right title, or interest to or in or over land registered under this part, shall, unless registered under this part, be deemed void against all parties claiming adverse interest thereto on valuable consideration by virtue of any subsequent document which has been duly registered".

Be it noted that the words are "every document executed". 'It is impossible to my mind to conceive a "document executed" in the case of a title obtained by adverse possession, unless, perhaps, by consent. Section 118 deals with the lodging of caveats "to prevent the registration of any document affecting any land registered under this part". The power to lodge caveats under this section is merely permissive and, as the learned trial judge said, there is no compulsion to lodge a caveat.

I think that I have dealt above with all the sections in Part XI which could possibly be relevant to the issue under review. In my view, it is clear that, although "mutation of title" might include a change of title by means of an acquisition of title by adverse possession, yet there is nothing in the Part to make it clear that such a mutation must be registered and no machinery of any kind is provided for registration of such a title. Indeed, the sections with their references to "instruments in writing" and "documents executed" appear to point towards the view that title by adverse possession need not be registered.

It is true that section 108 says that judgments, etc., affecting any land registered may be registered on the transmission to the registry of a certified copy thereto, but it is not expressed what the result of such transmission may be, nor does there. appear to be any compulsion on an alleged holder of a possessory title to obtain such a judgment. He might, of course, possibly obtain such a judgment under the section dealing with caveats.

Mr. Budhdeo, for the respondent, suggested that, in any event, appellant's title was extinguished in 1925 by efflux of time and, therefore, there was no necessity for registration. There was nothing to transfer because there was nothing to pass. How far this argument would be sound, if the Ordinance insisted on registration of title by adverse possession, it is, in the circumstances, unnecessary to discuss here.

In my view, then, whatever may have been the intention of the Ordinance, there is nothing apparent in Part XI of the Ordinance which creates the necessity for registration of titles obtained by adverse possession.

The case of the Belize Estate and Produce Co. Ltd. v. Quilter (1897) A. C. 367, was referred to in the Court below. That case does not seem to be entirely in point. It dealt with registration of titles in British Honduras and it appears that, under the Act under review in that case, the adoption of the Act by proprietors was only permissive and it was not made imperative that, when a title had once been put upon the register, it should therefore continue to be registered in the name of each successive owner.

For the reasons given by the learned President and, also, for the reasons given in this judgment, I consider that this appeal should be dismissed with costs.

LAW, C. J.—On the 1st January, 1904, one Imtiazali obtained a Crown lease of one acre and two roods for a period of ten years which in October, 1909, was surrendered by him in exchange for a ninety-nine year lease, with effect from the 1st October, 1909, in favour of himself and his son Yacobali trading as Imtiazali and Son. On the 12th January, 1907, before this exchange Imtiazali had sub-leased a portion of that area, namely fifty feet by one hundred feet, to the respondent for the residue of the ten year term less one day, that is to say, till the 31st

December, 1913. On the 27th July, 1910, Imtiazali and Son made another sub-lease to one Narshi Devji, whereupon respondent ceased to pay rent to them on the grounds that a portion of the premises which they had previously sub-leased to him had been included in the area sub-leased to Narshi Davji. Thereafter Imtiazali died, and Letters of Administration were granted to Yacobali on the 26th October, 1916. The firm of Imtiazali and Sons, however, continued as such, and, on the 6th March, 1923, by the affidavit of Lahoriram, one of the partners, the sub-lease to Narshi Devji was declared to have become extinguished. On the 22nd October, 1931, the ninety-nine year lease was mortgaged to the appellant, into whose hands it finally passed on the 1st The foregoing is shortly a history of the December, 1933. property under consideration.

It is not disputed that respondent has paid no rent since 1910, neither to Imtiazali and Son nor to appellant.

The appellant has now filed this action against respondent claiming, inter alia: $\rightarrow$

- (a) a declaration that he is the owner of the whole area covered by the ninety-nine year lease or of such portion thereof as respondent has not acquired by prescription; - (b) possession of such portion as he may be found entitled to under $(a)$ ; - (c) Sh. $1,100$ being mesne profits, or, in the alternative for use and occupation, in respect of such portion, from the 1st December, 1933, to the 1st October, 1935 (on which latter date the suit was filed); - (d) Sh. $15/99$ and Sh. $196/87$ , being respectively rent and taxes, in respect of such portion, from the 1st December, 1933, to the 1st October, 1935.

It may be observed that no definite area is specified in the plaint as being claimed from the respondent, but on his behalf it is contended that this can be ascertained by a calculation based on the amount of rent which the appellant says is repayable to him by the respondent proportionate to the one acre and two roods leased by Imtiazali from the Crown in 1909. The respondent regards this as important, because he argues that paras. $7$ and $8$ of the Memorandum of Appeal raise the point for the first time that in any event he has acquired no title by adverse possession to any other area than that which is actually covered by buildings erected by him on the portion which was sub-leased to him by Imtiazali in 1907. The respondent's counsel has submitted to us a calculation on that basis, from which he deduces that the appellant must be taken to be claiming $2,713.165$ square feet from him. This approximates the area 2,805.5 square feet which the chartered surveyor Mr. Tannahill computes as the whole portion under lease to the respondent.

Shortly, with regard to the defence, the respondent claims to have acquired ownership by prescription of the entire portion in dispute, and not only to the portion actually covered by the buildings. He denies liability in respect of rent taxes or otherwise.

Four points have emerged for consideration, namely:-

- (a) Has the respondent any title by adverse possession? - (b) If so, to what extent, that is to say, whether such title is limited to the area covered by the respondent's buildings? - (c) Assuming a title in the respondent by adverse possession against Imtiazali and Son, is the appellant affected thereby—as a bona fide purchaser for value and without notice-in view of the fact that the respondent has never brought his title on the Crown Lands Register? - (d) Is the respondent liable to pay the appellant any monies $\frac{d}{dx}$ in respect of rent, taxes or otherwise?

With regard to point $(a)$ the respondent claims the benefit of section 111, Transfer of Property Act 1882, which enacts that a lease of immovable property is determined by the efflux of the time limited thereby. That is to say, in the present case, by the efflux of ten years from the 1st January, 1904; in other words, that the lease to him terminated on the 31st December, 1913. Further, if this be so, then, under Article 139, Indian Limitation Act 1877, Imtiazali and Son could not have recovered possession from him after the 31st December, 1925, and, under section 28 of the same Act, the right of Imtiazali and Son to the property would have become extinguished after that date. This right, once having been extinguished, was not capable of being revived.

On behalf of the appellant, it is argued that the respondent's contention is not sustainable because respondent has remained in permissive occupation ever since the 31st December, 1913. and consequently limitation never started to run against him (the appellant). In support of this question of permissive occupation $\mathbf{I}$ the appellant has referred us to the case of Adimulam $v$ . Pir Ravubhan (8 Mad. 424) amongst other cases. In that case it was held that when a tenant for years hold over time does not begin to run against the landlord until the tenancy by sufferance has terminated for the reason that possession of a tenant by sufferance is not adverse to the landlord in whose power it was. to determine it, as for example, by some sort of act of assent which might convert it into a tenancy at will or by some act of dissent making the continuance in possession tortious. This case, however, was not only not approved but was declared to be no longer good law in the later case of *Vadapalli Narasimham* v. Dronamraju Seetharamamurth (1908. 31 Mad. 163), wherein section 116 of the 1882 Act was also referred to in explanation

of the type of tenancy which such a permissive tenant would be entitled to assert. Adimulan's case was definitely dissented from: in Pusa Mal v. M. Baksh (31 All. 514) and it was later held in Bisheshar Nath v. Kundan (1922, 44 All. 583) that Article 139 governed such suits as the present one before us. There is also the case of Ram Chandra Singh v. Bhikhambar Singh (1910, 37 Cal. 674) where it was held that a tenancy by sufferance might arise if assented to by the landlord, but that it would not prevent limitation from running against him.

With regard to so-called permissive tenancies on holding over, doubt was expressed in Madar Schib v. Kadar Moideen Sahib (1914, 39 Mad. 54) as to whether the fiction of tenancy by sufferance could be kept up after the 1882 Act.

In the case before us there is no evidence whatsoever of the appellant having assented to the respondent's continued occupa-But there is definite evidence that in 1912, after the tion. attempted sub-lease to Narshi Devji by reason of which the respondent stopped paying rent, the respondent offered Imtiazali R50 for an extension of the lease, which Imtiazali refused. $\operatorname{Not}$ only was Imtiazali then not assenting to the respondent remaining on as his tenant but he showed a definite desire of not wanting him as his tenant any longer though he continued in possession. In the circumstances, I am satisfied that section 111 Transfer of Property Act 1882 and Article 139 Limitation Act 1877 are applicable in this case, and that Imtiazali and Son's. -conduct in permitting the respondent to remain on after the -31st December, 1913, does not assist the appellant's case. $\mathbf{A}\mathbf{s}$ Imtiazali and Son's right to possession was finally extinguished -after 31st December, 1925, under section 28 Limitation Act, and fit could not be revived, Appasami Odayar v. Subramanya Odayar $(1888, 15$ I. A. 167).

Regarding point $(b)$ it seems this must follow what I have said under point (a). Imtiazali and Son took no action whatsoever to recover possession. In my view, therefore, their right to recover possession of any portion of the area leased to the respondent in 1907 was lost after the 31st December, 1925. This being so the appellant's right to possession is also barred by limitation.

As for point $(c)$ the appellant claims that the respondent should have registered his possessory title after the 31st December, 1925. He refers us to section 101 Crown Lands Ordinance (Cap. 140), and says that on that date namely, the 31st December, 1925, if there had been a mutation of title by virtue of such adverse possession the respondent was required to register it. He also refers to us section 12 Land Registration Act 1897 (English) which, however, I do not consider has any application. Assuming the respondent had a registered title by reason of

mutation through adverse possession, which I'do not agree he had, there is no penalty prescribed for non-registration as is provided in the English Act referred to above. In the circumstances his failure to register cannot operate to his detriment, and he is entitled to rely on his prescriptive title, as in the case of the Belize Estates v. Quilter (1897 A. C. 367). $\mathcal{A} = \mathcal{B}_{\text{max}}$

Finally, with regard to point $(d)$ any payments made by the appellant in respect of rent or taxes were made primarily for his own benefit and on his own account and he is not entitled to charge the respondent with these payments, either under section 69 or section 70 of the Indian Contract Act. Had he not made those payments, he would probably have forfeited his lease with the Crown.

Upon the foregoing conclusions, I would dismiss the appeal with costs.

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