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Kallu and ors. Vs. Mt. Jayanti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All639; 157Ind.Cas.696
AppellantKallu and ors.
RespondentMt. Jayanti
Excerpt:
- - the case having been approached from the point of view already stated, the trial court held that the defendants failed to establish adverse possession for more than 12 years. in appeal the lower appellate court also applied article 144 and held that the defendants failed to establish the adverse possession set up by them. in my opinion the finding of the lower courts that the defendant's version, as given by their witnesses, is untrue clearly establishes the fact that the plaintiff's, possession was continued till the date of mt. i am clearly of opinion that on the facts found by both the courts below the plaintiff must be considered to have had a subsisting title when she instituted the suit, even if article 142, limitation act, be applied......which need be taken notice of at this stage, is that the plaintiff became unchaste after the death of bhagwan singh and left the house which has since been in their adverse possession. the plaintiff had alleged in the plaint that she was dispossessed of the house on the 13th day after the death of her mother-in-law.3. the trial court framed two issues. one was whether the plaintiff was in possession within 12 years. the other was whether the defendants were in adverse possession for more than 121 years before the suit. it is quite clear that up to the time the court framed issues it had not made up its mind as to whether article 142 or 144, limitation act, should he applied. both parties led evidence, the plaintiff attempting to prove her allegation and the defendants attempting to.....
Judgment:

Niamatullah, J.

1. This is a defendants' appeal arising out of a suit brought by the respondent for possession of a house. The respondent, Mt. Jayanti, is the widow of one Bhagwan Singh, who admittedly owned and occupied the house till his death. He died about 21 years before the institution of the suit, leaving the plaintiff, his widow, and Mt. Bhagwan Dei, his mother. Bhagwan Dei died in 1931, and the present suit was instituted in December 1932. The plaintiff claimed the house as the heir of her husband. The defendants are the collaterals of Bhagwan Singh.

2. The only defence, which need be taken notice of at this stage, is that the plaintiff became unchaste after the death of Bhagwan Singh and left the house which has since been in their adverse possession. The plaintiff had alleged in the plaint that she was dispossessed of the house on the 13th day after the death of her mother-in-law.

3. The trial Court framed two issues. One was whether the plaintiff was in possession within 12 years. The other was whether the defendants were in adverse possession for more than 121 years before the suit. It is quite clear that up to the time the Court framed issues it had not made up its mind as to whether Article 142 or 144, Limitation Act, should he applied. Both parties led evidence, the plaintiff attempting to prove her allegation and the defendants attempting to prove theirs, namely, that they were in adverse possession of the house for more than 12 years before the institution of the suit. There is no doubt that if the defendants were in possession of the house for more than 12 years, their possession was prima facie adverse. The trial Court dealt with both the issues together and expressed the opinion that Article 144 was applicable. After discussing the evidence it arrived at the conclusion that the plaintiff was in possession of the house for sometime after her husband's death, that she left the house and began to live in other houses which she had rented, but that her mother-in-law continued to reside in the house. The witnesses examined by the defendants in proof of their possession were positively disbelieved. The case having been approached from the point of view already stated, the trial Court held that the defendants failed to establish adverse possession for more than 12 years. On that finding the plaintiff's suit was decreed. In appeal the lower appellate Court also applied Article 144 and held that the defendants failed to establish the adverse possession set up by them.

4. In second appeal it is contended that the articles which should have been applied is 142 and that, in the absence of a finding that the plaintiff' was in possession within 12 years before the Institution of the suit, a decree should not have been passed in her favour. In the view of the case I am inclined to take, it is not necessary for me to express a decisive opinion as to whether Article 142 or 144 is the correct article to apply. I assume for the purposes of this case that Article 142 is applicable and that it was for the plaintiff to establish that she was in possession within 12 years before the institution of the suit. In other words, it should be established that she was mot dispossessed, or that heir possession was not discontinued at a time which was more than 12 years before the institution of the suit. In my opinion the finding of the lower Courts that the defendant's version, as given by their witnesses, is untrue clearly establishes the fact that the plaintiff's, possession was continued till the date of Mt. Bhagwan Dei's death. Both the Courts have definitely found that the plaintiff's mother-in-law, Mt. Bhagwan Dei, lived in the house till 1931. It cannot be suggested that her possession was adverse to the plaintiff. She was the mother of the last male holder and had a right of residence; and if she had she lived in the thouse with the plaintiff's consent. It cannot be said that occupation of the house by the mother-in-law alone after the plaintiff left amounted to dispossession of the latter. That the plaintiff lived in the house for sometime after the husband's death has been found by both, the Courts below. It does not appear that she left her husband house and began to live in a rented house, because she was compelled to do so or because the defendants brought about a situation which made it impossible for her to continue to reside in her husband's house. On the evidence all that can be suggested is that she found it more convenient to live apart from her mother-in-law. I am unable to say that her possession of her husband's house discontinued only because she took up her residence in another house. Her possession must be deemed to have continued till she was ousted by another person claiming adversely to her. Such an event did not happen till the death of Mt. Bhagwan Dei. I am clearly of opinion that on the facts found by both the Courts below the plaintiff must be considered to have had a subsisting title when she instituted the suit, even if Article 142, Limitation Act, be applied.

5. This appeal is dismissed, under Order 41, Rule 11, Civil P.C.


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