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Kerala High Court · body

1953 DIGILAW 158 (KER)

Parameswaran Pillai v. Parameswaran Pillai

1953-10-26

KUMARA PILLAI, SANKARAN

body1953
Judgment :- 1. Defendant is the appellant. Plaintiff's suit is for recovery of possession of the plaint schedule propertyfrom the defendant on the strength of title and also on the strength of an alleged lease of the year 1112 under which the defendant is stated to have come into possession of the property. The title as also the lease set up by the plaintiff were denied by the defendant who contended that himself and his tarwad had been in possession of this property in their own title for the past several years and that even if the plaintiff's tarwad had any title to the property, the same has been lost by adverse possession and limitation. After considering the evidence adduced by both the parties the lower Courts have concurrently found that the oral lease set up by the plaintiff is false and that title to the property was with the plaintiffs tarwad and that such title has become vested in the plaintiff. On the strength of such title, the plaintiff was given a decree for recovery of the property. The reason stated for sustaining such a decree is that the defendant has not adduced any satisfactory evidence for conclusively establishing that he has perfected title to the property by open and hostile possession for more than the statutory period of limitation. 2. The main point taken up in the second appeal is that the view of law taken by the lower courts is erroneous and unsustainable. The Full Bench decision in Kunjukunju Amma v. Kunju (23 Travancore Law Journal 412) is in support of the view taken by the lower courts. That decision was followed in a later case also ie., in Thiruvambalam Pillai v. Sivachidambaram Pillai (57 Travancore Law Reports 451). But other High Courts in India have taken an entirely different view. In view of such divergence of view on the same question, the learned judge who first heard the second appeal thought it proper and desirable that the question raised in the second appeal is decided by a Division Bench and accordingly he referred it to a Division Bench. 3. In view of such divergence of view on the same question, the learned judge who first heard the second appeal thought it proper and desirable that the question raised in the second appeal is decided by a Division Bench and accordingly he referred it to a Division Bench. 3. From the facts already stated it is clear that even though the plaintiff brought the suit on the strength of his title he has definitely alleged in the plaint that his possession of the property discontinued in the year 1112 when according to him the defendant's possession commenced on the strength of the oral lease granted to him. Since the lease set up by him has been concurrently found to be false, his case that the discontinuance of possession commenced only in the year 1112 cannot stand. All the same the case is one of admitted discontinuance of possession while the plaintiff was in possession on the strength of title. The necessary averments to attract Art. 142 of the Limitation Act are already in the plaint and as such it is for the plaintiff to prove that he had a subsisting title to the property on the date of the suit. For that purpose, he has to make out and establish both the elements viz., title to the property and also possession within 12 years prior to the date of suit. In cases of this nature, the defendant in admitted possession of the property is not obliged to lead evidence to prove that his possession has been hostile for the statutory period. When the alleged origin of his possession as also its permissive or derivative nature are seen to be baseless, the plaintiff's claim for recovery of possession on the strength of such allegations must fail unless there is acceptable evidence on his side that he was in possession of the property within 12 years prior to the date of suit, so as to keep his title alive. This view is now generally accepted as correct. The decisions in AIR 1940 Madras 798 (Official Receiver v. Govindaraju) and in AIR 1946 Allahabad 389 (Sangam Lal v. Ganga Din) are in support of this position. This court has also taken the same view in Kannan v. Suppukutty Menon (1949 TCLR 80) and also in the recent decision in A.S. No. 529 of 1124. The decisions in AIR 1940 Madras 798 (Official Receiver v. Govindaraju) and in AIR 1946 Allahabad 389 (Sangam Lal v. Ganga Din) are in support of this position. This court has also taken the same view in Kannan v. Suppukutty Menon (1949 TCLR 80) and also in the recent decision in A.S. No. 529 of 1124. In the light of these decisions the dictum to the contrary in Kunjukunju Amma v. Kunju (23 Travancore Law Journal 412) and in Thiruvambalam Pillai v. Sivachidambaram Pillai (57 Travancore Law Reports 451) cannot be accepted and followed as correct. 4. It may also be stated that there is evidence in this case in support of the defendant's case of independent possession of the property for several years prior to the date of the present suit. Ext. II which is copy of the Classification Register and Ext. VI which is copy of the Demarcation Land Register relating to the present plaint property show that possession of the property even prior to the time of the settlement was with the defendant's tarwad. In both these documents Sankara Kurup of Mankattu house is mentioned as the person in possession and enjoyment of the property. There is evidence in this case to show that Mangattu house referred to in these documents is the defendant's tarwad. The plaintiff has no case, much less any evidence to show that the said Sankara Kurup was holding the property under the plaintiff's tarward. Such possession was open and must necessarily have been hostile to others who had title to the property. In his evidence the plaintiff himself has admitted that the defendant had possession of this property from 1101 to 1108. Such possession was sought to be explained by him by referring to another oral lease which also stands unproved. Under such circumstances it has to be taken that the possession recorded in favour of Sankara Kurup of the defendant's tarwad has all along been continued by the members of that tarwad in their own rights and that the plaintiff had no subsisting title to this property on the date of the suit. Thus in any view of the case, his claim for recovery of possession of the plaint property cannot be allowed. 5. In the result this second appeal is allowed and in reversal of the decrees of the lower courts the plaintiff's suit is dismissed with costs throughout. Allowed.