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Peria Koil Kelvi Appan Govinda Ramaniya Peria Jeeyangarswami Vs. Mahomed Esoof Sahib - Court Judgment

LegalCrystal Citation
Subject Property
CourtChennai
Decided On
Reported inAIR1925Mad834; 87Ind.Cas.386
AppellantPeria Koil Kelvi Appan Govinda Ramaniya Peria Jeeyangarswami
RespondentMahomed Esoof Sahib
Cases Referred and Putloor Bayonna v. Golusu Asethu
Excerpt:
- .....raised, namely : (1) is the plaint lease true? (2) does the plaintiff possess a valid title to the suit property? and (3) is the suit barred by limitation under article 144 of the limitation act? the district munsif found in favour of the plaintiff, on all these issues and gave him a decree. on appeal by the 2nd defendant, the subordinate judge held that the property belonged to the plaint devasthanam, but that the lease alleged was not proved. as regards the question of possession raised in the case, he set down two points for determination; point no. 3:whether the plaintiff was in possession of the land within twelve years before suit?and point no. 4:whether he (2nd defendant) and his ancestors have been in adverse possession for over twelve years.2. on both these points, he found.....
Judgment:

Madhavan Nair, J.

1. The plaintiff, appellant, instituted a suit, for establishing his right to the suit-land and for recovery of its possession from the defendants. He alleged in the plaint that the land belonged to the Devasthanam, of which he was the Dharmakartha, that it was leased to the father of the defendant and that when possession was demanded of them it was refused. The contesting defendant viz., the 2nd defendant, claimed the land as his own, as he and his ancestors enjoyed, it, for more than 50 years, as owners without any objection. On these pleadings, three issues were raised, namely : (1) Is the plaint lease true? (2) Does the plaintiff possess a valid title to the suit property? and (3) Is the suit barred by limitation under Article 144 of the Limitation Act? The District Munsif found in favour of the plaintiff, on all these issues and gave him a decree. On appeal by the 2nd defendant, the Subordinate Judge held that the property belonged to the plaint Devasthanam, but that the lease alleged was not proved. As regards the question of possession raised in the case, he set down two points for determination; Point No. 3:

Whether the plaintiff was in possession of the land within twelve years before suit?

and Point No. 4:

Whether he (2nd defendant) and his ancestors have been in adverse possession for over twelve years.

2. On both these points, he found against the plaintiff and, in the result, dismissed his suit.

3. It is argued before me that, in considering the question of limitation, namely Point No. 3, the Subordinate Judge has erred in applying Article 142 of the Limitation Act, to the facts of this case and that as regards adverse possession raised in Point No. 4, his conclusion is not based upon the evidence but on pure surmises. I think the contentions of the learned vakil for the appellant on both these points are well founded. Article 142 runs as follows:

For possession of immovable property, when the plaintiff, while in possession of the property, has been dispossessed, or has discontinued the possession - twelve years - the date of the dispossession or discontinuance.

4. The starting point for limitation under this Article is the date of dispossession or discontinuance. In M Donnell v. M'Kinty [1847] 10 Ir. L.R. 514 Blackburn, CJ., states that

the word 'discontinuance' of possession in the statute means an abandonment of possession by one person, followed by the actual possession of another person : for if no one succeeded, to the possession created or abandoned, there could be no one in whose favour or for whose protection the statute could operate. To constitute discontinuance, there must both be dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected.

5. In Smith v. Lloyd 156 E.R.P. 240 Baron Parke laid down the law as follows:

We are clearly of opinion that the statute applies not to cases of want of actual possession by the plaintiff, but rd cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Blackburn, C.J., in M'Donnel v. Kinty [1847] 10 Ir. L.R. 514 and the principle on which it is founded.

6. The principle laid down in these decisions, was accepted in the well-known case of Agency Co. v. Short [1888] 13 A.C. 793 which was followed by the Judicial Committee in The Secretary of State for India v. Krishnamoni Gupta [1902] 29 Cal. 518. In the words of Mookherjee, J., in Brojendra Kishore Roy Choudhury v. Sarojini Ray 20 C.W.N. 481 'Dispossession' implies the coming in of a person and the driving out of another from possession. 'Discontinuance implies the going out of the person in possession and his being followed into possession by another.' See also Charu v. Nahush A.I.R. 1923 Cal. 1. Article 142 of the Indian Limitation Act has no application to claims which neither in terms nor in substance are claims to possession made necessary, by reason of dispossession or discontinuance of possession per Heaton, J., in Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite [1911] 35 Bom. 79. The pleadings in this case clearly show that no case of dispossession or discontinuance, as above explained, was raised by the plaintiff in the plaint, nor was it attempted to be made out by the defendant. The actual issues framed related only to a case of adverse possession and even in the grounds of appeal to the lower Appellate Court, the case of the defendants was that they had perfected a title by adverse possession, for over twelve years. In these circumstances, I am of opinion that the learned Judge was wrong in having applied Article 142 to the facts of this case. The true article to be applied to a case of this kind is, in my view, Article 144 of the Limitation Act. Though the lease has been found against, it is quite open to the plaintiff to rely, on his title for recovery of possession of the suit property. The principle to be applied to the decision of the case is thus stated by Lord Shaw, in Secretary of State for India v. Chellikani Rama Rao A.I.R. 1916 P.C. 21.

Nothing is better settled than that the onus of establishing title to property, by reason of possession, for a certain requisite period, lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct, it would be open to the possessor for a year or a day to say, 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions.

7. This view has been confirmed by the Privy Council in a recent decision, in Kuthali Moothavar v. Kunharan Kutt A.I.R. 1922 P.C. 181 where the principle is thus stated at page 890:

Standing a title in 'A' the alleged adverse possession of 'B' must have all the qualities of adequacy, continuity, and exclusiveness which should qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor.

8. In Jai Chand Bahadur v. Girwar Singh (1919) 41 All. 669 the facts are thus stated in the judgment:

The plaintiff is the zamindar of the Village, and his title has been established in both Courts. He alleged that the defendant was put in possession for certain purposes, unnecessary to mention by leave and licence. The defendant denied the licence in his written statement and set up an adverse title. Mr. Baldeo Ram, for the defendant, says that it is not proved that the licence was ever granted or revoked. In our opinion, that is now immaterial. The plaintiff based his ease upon it, and from the moment that the defendant repudiated the licence and set up adverse possession, it was no longer possible for the defendant to rely on the licence, or to deny its revocation. He was in the position of a trespasser, without any defence to the suit, unless he succeeded in establishing his title, by adverse possession; he, however, failed to prove that he had been in adverse possession of the land, for more than twelve years.

9. It was held by Walsh and Ryves, JJ., that:

the plaintiff was entitled to succeed, simply on the strength of his prima facie title as zamindar. It was not necessary for him to go further and prove that he had been in actual possession, at some period, within twelve years, previous to the commencement of the suit.

10. The decision in Venkatarayudu v. Sankarayya : (1910)20MLJ306 , quoted by the learned vakil for the respondents, to the effect that Article 142 of the Limitation Act applies to a case of this kind, must beheld to have been over-ruled by the decision of the Privy Council in Secretary of State for India v. Chellikani Rama Rao A.I.R. 1916 P.C. 21. In the present case, as in the Privy Council case, the defendant denied the plaintiff's title and also set up a claim by adverse possession. The fact that the plaintiff has put forward an alternative case of lease also, which has been denied by the defendant and found against by the lower Court, does not in my view make Article 142 applicable : See Jai Chand Bahadur v. Girwar Singh (1919) 41 All. 669 quoted above. It follows, therefore, that the proper article applicable to this case is Article 144. The learned Subordinate Judge has no doubt found that the defendants have succeeded in proving adverse possession, for more than twelve years; but in arriving at this finding, I am inclined to think the learned Judge seems to have been, to a certain extent, influenced by his view that the decision in Framji Cursetji v. Gokuldas Madhowji (1892) 16 Bom. 338 seems to be inapplicable to Madras, in considering the character of the possession of a temporary nature of a vacant site, in view of the conditions, prevailing in this Presidency. I may, however, point out that the decision in Framji Cursetji v. Gokuldas Madhowji (1892) 16 Bom. 338 has been followed by this Court in Chockalinga Naicken v. Muthusami Naicken [1898] 21 Mad. 53 and Putloor Bayonna v. Golusu Asethu [1914] 16 M.L.T. 48 I would, therefore, ask the learned Judge to submit a fresh Hading on the evidence in the case on the issue:

Whether the 2nd defendant and his ancestors have been in adverse possession of the suit land for over twelve years?

11. The finding is to be submitted before the 1st August. Time for objection, ten days.

12. [On receipt of the finding from the Lower Court, the following judgment was delivered at the final hearing:]

The finding of the lower Court has not boon objected to, by the respondent. He does not appear. I accept the finding and reverse the lower Court's decree and restore the decree of the District Munsif, with costs here and in the Court below.


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