V. Sethuraman, J.
1. The plaintiffs are the appellants. They instituted a suit against the defendants for eviction and for removal of buildings and delivery of vacant possession of the property and for costs. The plaintiffs belong to a tarwad, which became divided on 2nd August, 1907 under which the karnavan one Velayudhan Narayanan got the entire property. The branch of the plaintiffs, who were the Seshakars of the said Velayudhan Narayanan, divided the property in 1926. The property devolved on the first plaintiff and her mother, and on the death of her mother, the first plaintiff became entitled to the property. There was a partition between the first plaintiff and her children on 17th December, 1953 and in the said partition the property set out in the schedule, comprising about 8 cents, fell to the share of the plaintiffs. Having traced title to the said property in the aforesaid manner, the plaintiffs alleged that the defendants had put up small buildings with the permission of the karnavan and that they had to be removed and the site restored to the plaintiffs. The property is comprised in Survey No. 6610 and the total area is 83 cents. The entire area is said to be a garden, in a portion of which viz., 8 cents therein some buildings have been put up by the defendants.
2. Defendants 1 and 2 filed a written statement, in which they stated that Survey No. 6610 became their property prior to M. E. 1020 corresponding roughly to 1845. According to them their ancestors were in possession. Even on the basis that the plaintiffs had any right to the property, their case was that the plaintiffs had lost their title prior to 1120 M. E. corresponding to approximately 1945. They, therefore, contended that the suit was barred by limitation. They challenged also the right of the plaintiffs to effect a division of the said property. It was alleged by them that the property had been allotted to the branch of one Govindan Udayan. Defendants 3 to 8 are the sons of defendants 1 and 21 Defendants 9 to 13 were tenants at win of defendants 1 and 2. Thus, the written statement of defendants 1 and 2 is practically the foundation on which the whole defence is rested.
3. The trial Court examined the title of the plaintiffs to the property in the light of the exhibits filed by the plaintiffs and the defendants. Exhibit B-l is a deed of partition in the family of one Govindan Udayan in which Survey No. 6610 was the subject of division. This division was followed up by a further division in Exhibit B-2 and also Exhibit B-3. However, by a document, which was marked as Exhibit A-5, there was a release by one Lakshmi Parvathy Pillai, of the branch of Govindan Udayan in favour of plaintiffs 1 and 2. This document is dated 30th March, 1928. Based on this Exhibit and, also on the other mterials referred to by the learned trial Judge, he came to the conclusion that the plaintiff's had title to the suit property. It was pointed out that the defendants had not traced any title from the family of Govindan Udayan so that Exhibit A-5 could be attacked as being collusive.
4. The learned Judge thereafter went into the question as to whether the defendants or their predecessors-in-title were in 'possession of the property right from M. E. 1020. On this aspect, he pointed out that defendants 1 and 2 had not stated as to how they got the property prior to 1020. He then referred to the evidence of the second defendant as D.W. 3 in which it was stated that the suit property was in the possession of the defendants under an othi and kuzhikkanam right of the year 1020 M. E. No particulars of the othi deed of 1020 were forthcoming and D.W. 3 had clearly admitted that he did not know whether his father had given evidence before the Settlement authorities claiming title or possession in respect of the suit property under any mortgage deed. This mortgage deed was referred to as Vellala document or a document in palmyrah leaves. Having found that there was no title in the defendants to the suit property, the learned Judge held that they were only tenants at will. The learned Judge referred to the fact that there was no direct evidence in support of the plaintiff's claim that there was, in favour of the defendants, a kuppakacha grant, which means that the tenant is permitted to be in the property subject to his gathering of the cocoanut leaves and surrendering them to the landlord. The learned Judge held that there was no question of adverse possession, as the possession of the defendants was permissive in character. He, therefore, decreed the suit.
5. The first two defendants filed an appeal. The learned Subordinate Judge of Nagercoil after referring to Exhibits A-l to A-5 and A-23 held, agreeing with the trial Court that the plaintiffs had got title to the suit property. The learned Judge thereafter examined the question of the loss of the plaintiffs' title by adverse possession. He pointed out that as admittedly the defendants were, in possession of the disputed property, the burden lay heavily on the plaintiffs to prove their case. According to him, the claim set up by the plaintiffs in the plaint was vague in character and the evidence of permissive possession had not also been established. In view of the vague allegations made in the plaint, of the failure to prove permission and of the possession of the defendants from the year 1087 M. E., he held that the suit was barred by limitation. In the result, the judgment and the decree of the lower Court were set aside.
6. On behalf of the plaintiffs-appellants the submission was that in view of the concurrent finding of both the Courts below on the question of title, the only point that could arise for examination by the learned Subordinate Judge was whether the defendants had proved their title by adverse possession over the requisite period. It was submitted that the defendants did not at all set up any consistent case as to how they came into the property and when possession became adverse. The learned Counsel urged that in the written, statement there was no plea of any title based on. an alleged usufructuary mortgage, which was trotted out only during the oral evidence of the defendant's witnesses and that D.W. 3 had gone, in contradiction of this, even to the extent of alleging a purchase by his grand-mother of the suit property in the year 1018, which case had not been put forward in the written statement. Counsel referred to the admission in the evidence of the defence witnesses that tax had been paid to jenmi thereby admitting the plaintiffs' title to the suit property. It was pointed out that there was no question of any adverse possession on the facts herein and that the burden had been wrongly laid on the plaintiffs by the lower appellate Court.
7. For the respondents (defendants) the submission was that the plaintiffs had to show that they were in possession of the suit property within a period of 12 years prior to the suit and that had not been established. It was urged that even on the basis of the plaint and the evidence of the plaintiffs, the property had been in the possession of the defendants for a long period, so that there was dispossession even as early as 1087 M.E. It would, therefore, follow, according to the learned Counsel for the respondents, that the suit was hopelessly barred by time, so that it was rightly dismissed by the lower appellate Court. Counsel also argued that the real question in the present suit was only whether the plaintiff had proved any permissive possession in the hands of the defendants and that the question of permission is a question of fact on which the appreciation of the evidence by the lower appellate Court could not be disturbed in a second appeal.
8. The suit itself was filed in the year 1967 after the Limitation Act of 1963 came into force. This Act has made certain changes in the law of limitation, which it is necessary to notice at this stage. Under the Limitation Act, 1963 Articles 64 and 65 correspondent to Articles 142 and 144 of the Limitation Act of 1908. Article 142 dealt with the suit for possession of immovable property, when the plaintiff, while in possession of the property, had been dispossessed, or had discontinued the possession. In such a case the period of limitation was 12 years from the date of the dispossession or discontinuance. Article 144 related to suits for possession of immovable property or any interest therein not specifically provided for in the schedule to the Act of 1908. The period of limitation was 12 years from the date when the possession of the defendant became adverse to the plaintiff. It may be seen that Article 144 was in the nature of a residuary article, which would come in for application only if there was no other specific provision in the other articles of that Act. In other words, if in a given situation Article 142 could apply, then the residuary Article 144 would be ruled out of the application.
9. Articles 142 and 144 gave rise to a good deal of confusion with respect to suits for possession by owners of property. The law as it stood appeared to favour respasser as against an owner, because the decisions had held that in an adjectment action by the owner of the property it was not sufficient for him to establish his title, but he had also to go further and establish that he was in possession of the property within 12 years before the date of the institution of the suit. In order to redress this anomaly, Articles 64 and 65 were suitably altered. Article 64 deals with suits based on possession and not on title. In such a case the plaintiff, who while in possession had been dispossessed, could file a suit within a period of 12 years from the date of dispossession. For the purpose of Article 64 there is no question of proving any title. Article 65 relates to suits for possession based on title. In such a case the period of limitation is 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Article 65, the defendant wants to defeat the rights of the plaintiff, he has to establish his adverse possession for a period of 12 years, which has the effect of extinguishing the title of the owner by the operation of Section 27 of the present Act. If he fails to do so, then the plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years.
10. The learned Counsel for the respondents was aware of the change in the legal position emerging from the Act of 1963. His endeavour was, therefore, to show that the plaintiffs had lost their right to the property at the time when the new Act came into force and that the new Limitation Act did not revive any right, which had already been extinguished when it came into force. It is in this context that the learned Counsel drew my attention to a decision of a Bench of this Court in Alam Khan Sahib v. A.L.M. Karuppannaswami Nadan and Ors. : AIR1938Mad415 The principle of this decision has been set out in the head-note as follows:
Where in a suit for ejectment, the plaintiff sets up in his plaint the case that the defendant is his tenant, it is tantamount to saying that the defendant, when he repudiated his title as landlord, dispossessed him, so that there is in effect an assertion of possession and dispossession precisely what is contemplated under Article 142. The mere fact that the recital in the plaint is false and the plaintiff was never in possession, but on the contrary strangers were in possession is not sufficient to attract Article 144 for, it might mean that there was independent trespass not connected as of right.
In order that this decision may apply, it is necessary that there should have been a repudiation of the title of the landlord by the tenant 12 years prior to coming into force of the Act of 1963 on 1st January, 1964. In other words there should have been a denial of the right of the landlord prior to 1st January, 1952. Counsel was not in a position to place before me anything to show that there was any repudiation of the title of the landlord prior to 1st January, 1952 in the present case. Thus, there is nothing in this decision, which supports the case of the respondents before me.
11. As the present suit has been filed after the coming into force of the Limitation Act of 1963, the onus is clearly on the defendants to show that possession was adverse to the plaintiffs for a statutory period of 12 years. There is no evidence on record to show when the possession of the respondents became adverse to the plaintiff. The case of the respondents has been somewhat shifting and ambulatory. Initially the case set up in the written statement was based on title. This case has been found against by both the Courts below. In the oral evidence there are two contradictory stands viz.: (1) of a usufructuray mortgage; and (2) of a purchase. For neither of these two stands is any evidence placed before the Court. The defendants would be in possession of the documentary evidence either to support the case of the usufructuary mortgage or that of purchase. The defendants have not placed any material on this point. Thus, the case of title set up in the written statement has been found against. The case of usufruturary mortgage or purchase, even assuming one has to go into it when the plea has not been taken in the written statement, has not also been established.
12. The learned Counsel for the respondents drew my attention to a decision of Rajagopala Ayyangar, J., (as he then was) in Govindaraj v. Kandaswami Goundar and Anr. : (1956)2MLJ578 . It was held therein that the plaintiff could not be allowed to abandon his own case, adopt that of the defendants and claim relief on that footing. I am unable to see how this case has any application to the facts here. The plaintiffs in the present case are not seeking to abandon their case of title, which is set out in the plaint. They are not trying to take advantage of a plea taken by the defendants in the written statement. In fact, the plea taken in the written statement is compeltely contrary to the case of the plaintiffs throughout and the plaintiffs do not claim any relief based on any plea in the written statement as such. This decision, is therefore, of no assistance to the question before me.
13. As already indicated, the contention of the learned Counsel for the respondents is that the title of the plaintiffs was lost by adverse possession over the statutory period prior to the Limitation Act of 1963 coming into force. On this aspect, I have already indicated, there is no evidence placed by the respondents. The learned Counsel for the respondents contended that the burden of proving adverse possession cannot be thrown on the respondents. The present suit having been filed after the Limitation Act of 1963 came into force, the law enacted therein would apply to suits filed thereafter. In the case of a suit for possession based on title, the plaintiff has no longer to prove that he was in possession of the property for a period of 12 years. It is for the defendant now to establish that his possession has been adverse for the requisite period of 12 years. This has not been done in the present case. In fact, the learned Counsel for the respondents is seeking to rely on the evidence of P.W. 1 in which he had stated that the ancestor of defendants 1 to 8 was the Maria Arulappan, who happended to live in the suit property as a kuppakacha kuzhi kidappukaran and that he came there under the permission of Velayudhan Narayanan in the year 1087 M.E., which corresponds to 1912. The defendants cannot seek to rely on one part of the evidence of P.W. 1 viz., of possession from 1087 M.E. and reject the other part viz.,. of permission. If P.W. l's evidence as regards the starting point of the possession of the defendants' ancestors of the year 1087 is to be relied on by him, then he cannot turn round and say that at the said starting point, possession was not permissive and therefore, adverse. Even the case set up by the respondents' counsel before me of adverse possession, which was not in fact taken in the written statement, cannot thus be accepted.
14. The question that now remains is whether the finding of the lower appellate Court that the plaintiffs have not proved permissive possession is binding on me. When the finding is based on a wrong application of the principle of burden of proof, then the finding cannot be said to be binding. In the present case, as I have already pointed out, it is for the defendants to establish that they had perfected title by adverse possession. The learned Subordinate Judge has not chosen to refer to any evidence on the defendants' side on the question as to whether this plea has been established or not., In these circumstances, it is clear that the finding of the lower appellate Court is not binding on me.
15. For the above reasons, I hold that the defendants have not established their case of adverse possession, that the plaintiffs having proved title to the property are entitled to the possession thereof, so long as the defence has not established the plea of adverse possession and that the judgment and the decree of the trial Court have thus to be restored. I direct accordingly.
16. The second appeal is allowed with costs.