ANANTHAYYA GOWDER v. SAMA GOUNDAN — 1986 DIGILAW 199 (KER)

Judgment :- 1. Defendants 1 and 3 in O.S. 183/ 71 on the file of the Munsiff's Court, Kalpetta are the appellants in S.A.918/80 and 6th defendant in the same case is the appellant in S.A. 979/80. The suit was filed by the plaintiff for redemption of Ext.Al mortgage executed on 10-3-1925 with a term of 12 years. Defendants 1 and 3 contended that the plaintiff is not having any subsisting title since the equity of redemption of the property was sold in court auction and purchased by the 1st defendant in 1940. They further contended that the suit is barred by limitation under Art.61 (a) of the Limitation Act. Defendants 5 and 6 resisted the suit by claiming fixity of tenure under the Kerala Land Reforms Act. The trial court accepted all these contentions and nonsuited the plaintiff. In A.S. 55/ 76 filed by the plaintiff, the District Judge Kozhikode reversed the finding of limitation and held that the court sale relied on by defendants 1 and 3 affected only 1/2 right over the property. The 1/2 right of the plaintiff and his mother was held unaffected by the sale. Tenancy right claimed by defendants 5 and 6 was not at all considered. Allowing the appeal, a preliminary decree for partition and redemption of 1/2 right in the plaint schedule properties was given to the plaintiff. Value of improvements was directed to be decided in the final decree proceedings. That is how the second appeals happened to be filed. 2. The parties are admittedly followers of the Hindu Mitakshara law. The ancestors were Krishna Goundan and Tripti Goundan to whom the properties belonged. Fourth defendant is the son of Krishna Goundan and plaintiff is the son of Tripti Goundan. Plaintiff's mother is one Paddy Avva. Krishna Goundan and Paddy Ayva (Paddy Avva also acting as guardian of the plaintiff) mortgaged the properties to one Gopalan Goundan. who sub-mortgaged the same under Ext. BI to the 1st defendant on 16-6-1932. They took back the properties on lease from the 1st defendant by Ext. B2 dated 6-6-1938. The heirs of Gopala Goundan assigned the mortgage right in favour of the 1st defendant who was already the sub-mortgagee. They again took back the properties on lease from him. The fact that some of the properties are outstanding on lease is mentioned in Ext. B2 itself. 3. B2 dated 6-6-1938. The heirs of Gopala Goundan assigned the mortgage right in favour of the 1st defendant who was already the sub-mortgagee. They again took back the properties on lease from him. The fact that some of the properties are outstanding on lease is mentioned in Ext. B2 itself. 3. The 4th defendant has taken a loan from Panamaram Co-operative Society and mortgaged the properties in favour of the society. For realisation of the amount there was an award in favour of the society. In execution of the award the properties were sold on 12-12-1939 and purchased by the 1st defendant evidenced by Ext. B3 sale certificate dated 18-8-1940. Exts. B4 and B5 are the pattas granted to him. It was on the basis of these sale certificates that the 1st defendant claimed absolute title because by earlier documents the mortgage and sub-mortgage rights devolved on him. The plaintiff contended that the document executed by the 4th defendant was not for joint family necessity or consideration and at the best the sale would affect only 1/2 right of Krishna Goundan. 4. The points arising for consideration in these second appeals are: (1) Whether the suit for redemption of Ext. Al is barred by limitation under Art.61 (a) of the Limitation Act. (2) Whether the plaintiff is having any subsisting right over the properties entitling him to sue for redemption of the mortgage and (3) Whether defendants 5 and 6 are having tenancy right and fixity of, tenure under the Kerala Land Reforms Act. 5. I shall first consider the question of limitation. Ext. Al is the suit mortgage and it is dated 10-3-1925. Term is 12 years. The term expired on 10-3-1937. Under Art.148 of the Limitation Act of 1908 the period of limitation was 60 years. The corresponding provision is Art.61 (a) of the new Limitation Act under which the period of limitation got reduced to 30 years. Under both the Acts the starting point of limitation is when the right to redeem or to recover possession accrues. The dispute between the parties is regarding the starting point of limitation namely as to when the right to redeem or recover possession accrued to the plaintiff. Under both the Acts the starting point of limitation is when the right to redeem or to recover possession accrues. The dispute between the parties is regarding the starting point of limitation namely as to when the right to redeem or recover possession accrued to the plaintiff. While the appellants contended that the right to redeem or recover possession accrued immediately after the expiry of the term under the mortgage, the respondent-plaintiff says that the starting point of limitation when taken along with the provisions of the Kerala Compensation for Tenants Improvements Act 29 of 1958 is only the date on which the mortgagor deposits the value of improvements due to the mortgagee. According to him, the provisions of the Compensation for Tenants Improvements Act will have to be read into the provisions of the Indian Limitation Act for the purpose of ascertaining the time when right to redeem or recover possession accrues. 6. The properties are in Malabar area which was part of the erstwhile Madras State. The Madras Compensation for Tenants Improvements Act 1 of 1900 was applicable. In Travancore-Cochin also there was a similar Act. It was after formation of the Kerala State that the successor Act 29/58 came into force. The relevant provisions are identical in all the three enactments. Tenant includes mortgagee under all the three statutes. So also every tenant to whom compensation is due shall, notwithstanding determination of the tenancy or payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court as per the provisions of the three statutes. All the Acts provide that the tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of the lease or mortgage if any. Even a decree for eviction is conditional on payment of compensation according to S.5 of Act 29 of 1958. Therefore, basing on certain decisions it was contended that since value of improvements has not been ascertained and tendered or deposited so far, the period of limitation has not started and therefore there is no scope for a successful contention that the suit is barred by Imitation. 7. Therefore, basing on certain decisions it was contended that since value of improvements has not been ascertained and tendered or deposited so far, the period of limitation has not started and therefore there is no scope for a successful contention that the suit is barred by Imitation. 7. I have already stated that the period of limitation for redemption of a mortgage which was 60 years under the old Limitation Act got reduced to 30 years under the new Limitation Act. The new Act came into force on 1-1-1964. The term of 12 years under Ext. Al expired on 10-3-1937 and under the new Limitation Act the suit ought to have been filed on or before 10-3-1967. S.30 of the new Limitation Act says that notwithstanding anything contained in the Act any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be instituted within a period of 7 years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act 1908, whichever period expires earlier. In this case, the period of limitation under the Limitation Act 9 of 1908 was to expire only after the new Limitation Act came into force on 1-1-1964. Therefore, the extended period of 7 years under S.30 (a) of the new Limitation Act will have to be computed from 1-1-1964 on which date the new Act came into force. If so, the suit had to be filed on or before 1-1-1971 if the starting point of limitation is treated as the date on which the term under Ext. Al expired. But the suit was filed only on 4-12-1971. The first appellate court also also said that prima facie the suit is barred by -limitation. The plea of limitation was overcome by the appellate court only on the basis of S.5 of the Madras Act 1 of 1900 and the decision in K. P. Govindan v. J. S. D'Silva (AIR 1938 Madras 581). According to the District Judge, the above decision held that S.5 of Act 1 of 1900 overrides Art.139 of the old Limitation Act and the starting point of limitation for a suit for redemption has been thereby extended till the time when compensation for improvements is tendered or deposited. According to the District Judge, the above decision held that S.5 of Act 1 of 1900 overrides Art.139 of the old Limitation Act and the starting point of limitation for a suit for redemption has been thereby extended till the time when compensation for improvements is tendered or deposited. It is the correctness of this finding that was strongly canvassed by the appellants. 8. The counsel for the 1st respondent relied on certain decisions to support his contention that the period of limitation to bring a suit for redemption or recovery of possession arises only when the value of improvements due to the mortgagee is paid or deposited. All those decisions were dealing with Art.139 of the old Limitation Act corresponding to Art.67 of the new Limitation Act along with S.5 and 6 of the Malabar Compensation for Tenants Improvements Act 1 of 1900 (Madras). The decisions cited were: Kummatta Vittil Kunhikutty Haji v. Reverend Antoni Gower and others (1913 (24) MLJ 427), Arumuga Sundara v. Narasimha Iyer (AIR 1961 Madras 875), Eroma Menon v. Sankunni Menon (AIR 1918 Madras 887), Theman v. Kunhi Pathumma (AIR 1918 Madras 84) and Govindan v. De'silva (AIR 1938 Madras 581). These decisions held that as the tenants are continuing in possession as statutory tenants even after determination of tenancy in view of the provisions of the Malabar Compensation for Tenants Improvements Act since compensation for improvements were not paid, there is no question of limitation or adverse possession running against the landlord. In Eroma Menon's case (AIR 1918 Madras 887), the question was whether redemption of the mortgage determined the tenancy of the lessee of the mortgagee. I do not think that these decisions have any bearing on the question of limitation to be considered in this case. 9. There is no point in saying that the provisions of the Compensation for Tenants Improvements Act will override the provisions of the Limitation Act. The former has been enacted mainly to protect the rights of tenants in getting compensation. What S.4 of the Kerala Act 29 of 1958 says is "on eviction be entitled to compensation." In cases of eviction by suits the question of eviction arises only after decree. S.5 makes the matter more clear. That section contemplates a suit for eviction in which the plaintiff succeeds and the defendant establishes a claim for compensation under S.4. What S.4 of the Kerala Act 29 of 1958 says is "on eviction be entitled to compensation." In cases of eviction by suits the question of eviction arises only after decree. S.5 makes the matter more clear. That section contemplates a suit for eviction in which the plaintiff succeeds and the defendant establishes a claim for compensation under S.4. Compensation has to be ascertained and provided in the decree. S.5 (3) provides even for revaluation of improvements after the decree and variation of the decree accordingly in execution. 10. Art.139 of the old Limitation Act corresponding to Art.67 of the new Limitation Act provide that the period of limitation commences when the tenancy is determined. All the decisions cited by the counsel for the 1st respondent dealt with cases coming under those articles. As I have already stated the main purport of those decisions is that even after the expiry of the period of limitation provided under those articles the right of the landlord for eviction is not barred by limitation or adverse possession on account of the deemed tenancy created under S.5 of the Malabar Compensation for Tenants Improvements Act. But we are concerned with a case coming under Art.148 of the old Limitation Act corresponding to Art.61 (a) of the new Limitation Act where the starting point of limitation is when the right to sue or recover possession accrues. It has nothing to do with the determination of the mortgage. Time begins to run as soon as the mortgagor becomes entitled to sue for redemption or recovery of possession. Ascertainment and payment of improvements are only processes to be undergone in the exercise of the right of redemption or recovery of possession, when once that right has accrued. Accrual of the right to redeem or recover possession is the date on which cause of action arises and from which limitation begins to run. Plaintiffs have also understood it in that sense. In the plaint itself it is stated that cause of action arose on 10-3-1937 on which date the term under Ext. Al mortgage deed was over. 11. If as argued for the plaintiff-respondent the cause of action will arise and time will begin to run only after compensation is paid or deposited, even now the plaintiff has no cause of action. The preliminary decree provided value of improvements to be ascertained in the final decree. Al mortgage deed was over. 11. If as argued for the plaintiff-respondent the cause of action will arise and time will begin to run only after compensation is paid or deposited, even now the plaintiff has no cause of action. The preliminary decree provided value of improvements to be ascertained in the final decree. It has not so far been ascertained and deposited. In the suit notice sent by the plaintiff, he has not even offered any value of improvements. If so, if the argument of the plaintiff is accepted, even now he has no cause of action and the suit must be held to be premature. That is not a contingency contemplated under the Compensation for Tenants Improvements Act. The provisions in that Act are intended to protect the interest of the tenants including mortgagees to whom compensation is due, not to be dispossessed till the entire compensation due to them is paid. So also, the provisions are intended to legalise their possession till such payment. A different interpretation means that in all suits for redemption, there must be a procedure for ascertaining value of improvements and tendering or depositing the same before the suit for redemption is filed. That is unworkable and is against the spirit of S.4 and 5 of Act 29 of 1958 itself which provide for assessment and re-assessment of improvements even at the time of execution of the decree. 12. There is nothing in Act 29 of 1958 or its predecessor legislations indicating that these legislations have anything to do in interfering with the periods of limitation fixed under the Limitation Act. Ouseph Varkey v. Neelakanda Iyer (ILR 1985 (1) Ker. 386). Janamma Bhagavathy v. Raman Nadar 0977 KLT 491). Ahammad Alias Kunhu v. Achutha Menon (1964 KLT 592), Adhrumankutty v. Chovvara (1963 KLT 306) and many other decisions considered the question with reference to the Debt Relief Acts as to whether the periods of limitation are varied by the provisions of those Acts. The uniform answers were in the negative. I am not considering those decisions in detail because it is not very much necessary for our purpose. 13. It cannot be said that the Law of Limitation was enacted without any purpose. Leaving rights and liabilities remain unsettled indefinitely or eternally may create difficult situations for the individuals, the society and the State itself. I am not considering those decisions in detail because it is not very much necessary for our purpose. 13. It cannot be said that the Law of Limitation was enacted without any purpose. Leaving rights and liabilities remain unsettled indefinitely or eternally may create difficult situations for the individuals, the society and the State itself. It may topple positions in life settled and established with much stress and strain. If the interpretation given by the plaintiff is accepted the period of limitation fixed under Art.61 (a) will become meaningless. Mortgagors will become entitled to wait according to their sweet will and pleasure indefinitely for any length of time to dictate as to what should be the starting point of limitation. They could take advantage of their own laches and inability to pay the redemption price for the purpose of gaining time in filing suits for redemption. Any how that cannot be what the Legislature intended. Paily v. Augusthy & Others (1967 KLJ 212 FB) held: "While S.4 confers substantive rights on the tenant, S.5 provides the procedure by which these rights are to be secured by the courts in cases coming up before them. The substantive rights conferred by S.4 on the tenant are the right to compensation for improvements which were made by him, and, as a means of enforcing that right in cases where payment has not already been made, the ancillary right to remain in possession, not be it noted, until compensation is paid, but until eviction in execution of a decree or order of court. And the procedure provided by S.5 ensures that the court will not evict the tenant until the compensation due to him is paid into court for payment to him." 14. Limitation Act comes under concurrent list in the VIIth Schedule of the Constitution as entry 13 and it was enacted by the Parliament. The present Limitation Act came into force on 1-1-1964. The Kerala Act 29 of 1958 (Compensation for Tenants Improvements Act) is a State legislation which came into force on 24-5-1958. Plaintiff's contention is that the provisions of Act 29 of 1958 and its predecessor legislations have the effect of acting as amendments to the Indian Limitation Act. The present Limitation Act came into force on 1-1-1964. The Kerala Act 29 of 1958 (Compensation for Tenants Improvements Act) is a State legislation which came into force on 24-5-1958. Plaintiff's contention is that the provisions of Act 29 of 1958 and its predecessor legislations have the effect of acting as amendments to the Indian Limitation Act. In fact the argument advanced was that in order to compute the starting point of limitation the provisions of the Compensation for Tenants Improvements Act will have to read into the provisions of the Limitation Act. I do not think that there is much merit in this contention. If there is any anomaly or conflict between the provisions of a State legislation and a legislation enacted by the Parliament, it could be resolved only under Art.254 of the Constitution. Art.254 of the Constitution reads: "254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State." According to Art.254 (1), to the extent of the repugnancy, if any, the State Legislation must be void. Art.254 (2) is not applicable in the present case because the State Legislation is the earlier one than the Limitation Act enacted by the Parliament. Therefore, even accepting that there is conflict between the provisions of the Limitation Act and Act 29 of 1958 in the matter of starting point of limitation the provisions of the latter cannot override the former. To the extent of the repugnancy, if any, the provisions of Act 29 of 1958 could only be void. I do not mean to say that there is any repugnancy. At any rate, the Legislature cannot be intended to give the choice of fixing the starting point of limitation to anybody much less to the persons who are to bring the suits within the period of limitation. Once the period of limitation starts to run it cannot be arrested. Under the provisions of Act 29 of 1958 the right to recover possession alone is postponed till payment of value of improvements and by fiction of law deemed tenancies are created to legalise the continued possession of the mortgagee or lessee to whom compensation is not actually paid. In our case the right to redemption or recovery of possession accrued when the term under the mortgage was over and it is not postponed by Act 29 of 1958. 15. A second suit for redemption or partition may lie subject to the law of limitation. Those are only in cases where the right to sue has not been lost. The cases relied on by the counsel for the first respondent could only have the effect of laying down that the light to recover possession has not been lost by limitation or adverse possession. Therefore, the finding of the learned District Judge that the suit is within the period of limitation must go. The suit is evidently barred by limitation. 16. If so, the other two points may not arise for consideration. Since those points were also argued before me, I shall consider them for the sake of finality and completeness. As P.W. 1, the plaintiff admitted that the parties are followers of Hindu Mitakshara Law, that they are members of a Hindu Joint Family, that the properties are ancestral properties and that there was no partition. Since those points were also argued before me, I shall consider them for the sake of finality and completeness. As P.W. 1, the plaintiff admitted that the parties are followers of Hindu Mitakshara Law, that they are members of a Hindu Joint Family, that the properties are ancestral properties and that there was no partition. Fourth defendant was the Manager or Kartha of the joint family at the time when he incurred the debt in favour of the Co-operative Society is also practically admitted. The only argument was that there is nothing to show that the debt was incurred for joint family necessity. It is true that we are having the testimonies of the plaintiff and the 1st defendant alone. It may be true that it was the duty of the 1st defendant to prove joint family necessity. But joint family properties were sold for the debt as if it was a joint family debt. The properties were sold and the sale was confirmed as early as 1940. The 1st defendant got pattas as evidenced by Exts.B4 and B5. There is no case that the members of the joint family were not aware of the debt and the sale evidenced by Ext.B3. No member of the joint family questioned the same or the patta in favour of the 1st defendant. Even in the plaint there was no challenge that the debt was not. incurred for joint family necessity or that it was not a joint family debt. No member challenged the sale so far. In such a situation, strict proof regarding family necessity cannot be insisted from the defendants. The court sale must have extinguished the rights of the family which slept over their rights for more than 30 years. 17. The last point to be considered is the tenancy rights claimed by defendants 5 and 6. They claimed tenancy under the 1st defendant on the basis of Exts.B6 and B8. Their possession is admitted. The Munsiff found that they are lessees entitled to fixity of tenure. The District Judge did not consider that aspect at all. 18. This is a case in which S.43 of the Malabar Tenancy Act. 1929 was applicable. They claimed tenancy under the 1st defendant on the basis of Exts.B6 and B8. Their possession is admitted. The Munsiff found that they are lessees entitled to fixity of tenure. The District Judge did not consider that aspect at all. 18. This is a case in which S.43 of the Malabar Tenancy Act. 1929 was applicable. S.43 of the Malabar Tenancy Act, 1929 reads: "Notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force, or in any contract, a cultivating tenant or the holder of a Kudiyiruppu shall be entitled to continue on the holding as such, although the rights of his immediate landlord or of any superior landlord have been extinguished, whether by eviction or by redemption of a mortgage or otherwise, subject, however, to a liability to pay fair rent and to the provisions of this Act applicable to a cultivating tenant or the holder of a kudiyiruppu. as the case may be." There cannot be any dispute regarding the fact that under the above provision, defendants 5 and 6 would have bean entitled to continue in possession even after extinguishment of the mortgage right of their lessor. S 3 of the Kerala Land Reforms Act deals with exemptions. S.3(1) (v) of the Act says that nothing in Chapter II shall apply to tenancies in respect of land or of buildings or of both created by mortgagees in possession or by persons deriving title from such mortgagees. In fact this question does not arise at all because the first defendant has by now become owner of the properties. Even otherwise, the exemption is not applicable because the first proviso to S.3(1) (v) says that nothing in the clause shall apply to such tenancies created before the commencement of the Act in Malabar. So also the proviso coming after S.3 (1) (vii) says that nothing in clauses (i) to (vii) shall apply in the case of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons. Evidently, under the Malabar Tenancy Act, defendants S and 6 were entitled to fixity of tenure. Therefore, the exemption under S.3 is not applicable in their case even construing that they are only lessees of the mortgagee. Evidently, under the Malabar Tenancy Act, defendants S and 6 were entitled to fixity of tenure. Therefore, the exemption under S.3 is not applicable in their case even construing that they are only lessees of the mortgagee. Further, they may at least be entitled to the protection under S.7B (1) of the Kerala Land Reforms Act. 19. It was argued for the 1st respondent-plaintiff that the question of tenancy that has arisen in this case was not referred to the Land Tribunal for decision and that the decision of the Munsiff on the question of tenancy without reference to the Land Tribunal must be held to be without jurisdiction and therefore void. In the decision in Kesava Bhat v. Subraya Bhat (1979 KLT 766 (F.B)) it was held: "There is an ouster of jurisdiction of the civil court to decide a question of tenancy, by S.125(1) of the Act. Such a question must be referred to the Land Tribunal under S.125(3), and dealt with as provided by that clause and the other clauses of that Section. A contravention of the provisions of S.125(3) is a matter of jurisdiction and not one relating to procedure. If a question of tenancy arose, the civil court decree without reference to the Tribunal would be without jurisdiction, and therefore null and void." 20. It is true that even though the question of tenancy has arisen, the Munsiff has not referred the same to the Land Tribunal. He decided the question without such a reference. As earlier stated, the District Judge has not at all considered this finding in appeal. The judgment of the District Judge does not show that the question of reference to the Land Tribunal was raised before him by the plaintiff or anybody else. So also the judgment of the trial court also does not show that there was a request before it by anybody for a reference to the Land Tribunal. The judgment of the District Judge does not show that the question of reference to the Land Tribunal was raised before him by the plaintiff or anybody else. So also the judgment of the trial court also does not show that there was a request before it by anybody for a reference to the Land Tribunal. In the Full Bench decision in Alavi v. Radha Varasyaramma (1976 KLT 691) it was held: "When for the first time, the objection that the decision of the trial court should have been reached after reference to the Land Tribunal is taken in Second Appeal, this Court is not called upon to reopen the decisions of the court below in order to enable the trial court to refer the matter to the Land Tribunal." The Full Bench which decided the case in Kesava Bhat's case (1979 KLT 766) at page 784 in Para.13 refused to express its opinion regarding such a situation. Another Full Bench decision in Karthiyayani v. Pappu (1980 KLT 541 (F.B.)) said: "If the point was taken at least before the appellate court, the appellate court may, is given circumstances, set aside the decree of the trial court and remit the case to the trial court for compliance with S.125(3). However, it is not obligatory on the part of the appellate court to do so. It has full powers to decide the question itself. This is clear from sub-section (6) of S.125 of the Act. If no point had been taken before the appellate court that S.125(3; had not been complied with by the trial court, the point ought not to be permitted to be taken in the second appeal for the first time. In cases where the point had been taken before the appellate court, but had not been accepted by the appellate court the question might arise before the second appellate court whether the decision of the first appellate court not to remit the case to the trial court to enable the trial court to make a reference to the Land Tribunal was a just and proper decision in the circumstances of the case. No such question arises in this case. The point had not been taken before the trial court and was not taken even before the appellate court. No question of setting aside the decision of the lower courts arises in this appeal." 21. No such question arises in this case. The point had not been taken before the trial court and was not taken even before the appellate court. No question of setting aside the decision of the lower courts arises in this appeal." 21. The matter was further considered by a Division Beach in the decision in Kunjan v. Janaki (1980 KLT 796) and it was held: "In view of this binding pronouncement it may be open to the petitioner to contend that the trial court's decree was rendered without jurisdiction. But the majority has left open the question whether if, on appeal from the trial court decision, the Appellate Court goes into the question of tenancy and renders a decision, that decision will be a nullity. At page 784 this question is mentioned in Para.12 and 13 and left open with this observation "We do not wish to pronounce on this aspect." Here the trial court decision was in favour of the petitioner. The plaintiff appealed against thai decree. The petitioner had no complaint either in the trial court or in the First Appellate Court that the trial court had no jurisdiction to go into this question. A decree made without jurisdiction possesses nonetheless the qualities of a decree as between the parties thereto and if there is a statutory appeal from the decree made in suits of that character, the decree does not become unassailable by appeal. If the jurisdiction is usurped by a court in passing a decree against which an appeal would lie if it had been passed with jurisdiction, that appeal cannot be defeated on the ground that the decree was made without jurisdiction." 22. In view of these decisions, it may not be possible to accept the contention of the first respondent that the case has to be sent back for referring the question of tenancy to the Land Tribunal. In this case such a contingency cannot arise for the further reason that I have found that the suit is barred by limitation. So also it was found that the plaintiff is not having subsisting title also. The second appeals are therefore allowed. The decree and judgment of the appellate court are set aside and those of the Munsiff dismissing the suit restored with costs throughout.