KUNHAMBU NAIR v. KUNHAMMARU AMMA — 1973 DIGILAW 2 (KER)

Judgment :- 1. If the decision of this court in Kalliani v. Kalliyani 1969 KLT. 362 it correct, I think the decrees of the courts below call for interference. That is because the main controversy is whether the suit for recovery of possession I am assuming so and I will, in due course, point out that I treat this as a suit for recovery of possession is barred by limitation under Art.142 of the Indian Limitation Act, 1908 (this is the Act applicable to this case). The plaintiffs contend that they were in possession of the suit property and the defendant was in occupation of a building therein under a rental arrangement which building was destroyed and therefore the tenancy with regard to the building has terminated. They seek recovery of possession of the property apparently on the basis that defendant trespassed therein. Defendant sets up a tenancy with regard to the suit property in favour of his father that having commenced, according to him, about 40 years earlier. On the evidence in the case the plea of tenancy set up by the, defendant has been found to be not proved. Defendant is found to be a person who was originally allowed to occupy the building in the property as a tenant but it is also found that on the date of suit he was in possession not only of the building but the property also. On these facts, the court below, relying on the decision of this Court in Marimuthu Goundan v. Thambi 1960 KLJ.1304 held that the plea by the defendant of a lease which be was unable to prove is sufficient to entitle the plaintiff to a decree. It is the correctness of this that is under challenge in the appeal by the defendant in the suit. 2. The decision in Marimuthu Goundan v. Thambi 1960 KLJ.1304 was referred to by this Court in Kalliani v. Kalliyani 1969 KLT. 362 and that was distinguished. It is the correctness of this that is under challenge in the appeal by the defendant in the suit. 2. The decision in Marimuthu Goundan v. Thambi 1960 KLJ.1304 was referred to by this Court in Kalliani v. Kalliyani 1969 KLT. 362 and that was distinguished. This Court said: "Where the plaintiff alleges tenancy and the defendant admits the same or where the plaintiff or defendant alleges tenancy and such tenancy is proved, the suit may, in essence, be one between landlord and tenant, and in such a case the plaintiff is not called on to prove possession within 12 years of suit be would nevertheless have to prove thai the tenancy has been duly determined so as to entitle him to present possession; and in view of Art.139 that this determination was within 12 years before the suit. But where one of the parties alleges a tenancy but it is not sustained in evidence, the principle to be applied is not the one applicable to a suit between landlord and tenant in the matter of limitation. No doubt, the admission by the defendant in such a suit that he is a tenant may amount to an admission that when the tenancy was created the landlord was in possession, so that he could put the tenant in possession. If the tenancy alleged happens to be one which commenced within 12 years of the suit, plaintiff may succeed on the strength of title taking the admission of the defendant as proving the possession of the plaintiff within 12 years. We think this principle cannot be extended to cases where the admission implied in a plea of tenancy relates to a period of more than 12 years prior to the date of suit." This decision has been noticed by a Full Bench of this Court in Pappy Amma v. Prabhakaran Nair 1971 KLT. 431 and on more than one occasion it has been urged before me by counsel that the decision of the Division Bench in Kalliani v. Kalliyani 1969 KLT. 362 has been overruled by the Full Bench and it is for that reason that I felt I should advert to this in some detail here. 3. 431 and on more than one occasion it has been urged before me by counsel that the decision of the Division Bench in Kalliani v. Kalliyani 1969 KLT. 362 has been overruled by the Full Bench and it is for that reason that I felt I should advert to this in some detail here. 3. Of course, some decisions of the courts in India seem to state a principle that in a suit for eviction if the defendant sets up a plea of lease he would thereby be admitting the title of the plaintiff and though the plaintiff would normally be called upon to prove his possession within 12 years of the date of suit to get a decree, without any such proof, that would not be the case when there is such admission and hence the plaintiff would be entitled to a decree, This principle could very well be understood in a case where the admission by the defendant is of a lease which has admittedly come into existence within 12 years of the suit. That is so because the very fact that he sets up a case of lease may amount to an admission by him that the lessor was in a position to bring about such a lease which in turn may amount to an admission of the lessor's possession on the date when he is alleged to have brought about the lease. If in a suit for possession a plaintiff has to show possession within 12 years of suit irrespective of the question whether defendant has been in possession for the full term of 12 years or not, I fail to see how a defendant who sets up a false plea of lease in a suit for eviction should be in a more disadvantageous position simply because he has set up a false plea. I cannot conceive a court penalising the defendant for the plea which he has set up and which has been found to be false. Or, to put it more emphatically, I would say I see no reason why the plaintiff should get an undue advantage in such a suit simply because the defendant has chosen to set up a plea which he has failed to prove. Or, to put it more emphatically, I would say I see no reason why the plaintiff should get an undue advantage in such a suit simply because the defendant has chosen to set up a plea which he has failed to prove. Of course, if the plea so set up by the defendant is one of admission of the plaintiff's possession within 12 years of suit or involves any such admission the position is different. It is evident that, if in a suit to which Art.142 of the Limitation Act, 1908 applies even if a defendant in possession on the date of suit happens to be in possession for a period much less than 12 years and he does not claim possession under any person who was previously in possession the plaintiff will be non-suited if plaintiff has been out of possession for more than 12 years. Therefore in such a suit it is not as if by any adverse possession of the defendant in that suit the plaintiff's title is considered as extinguished. Plaintiff loses his right to recover possession because he has not come to court to recover such possession within 12 years he was dispossessed irrespective of the question whether defendant in the suit is the person who so dispossessed him or one claiming under such person and also irrespective of the question whether the person so dispossessed has perfected title indefeasible by lapse of time. It appears to me quite illogical to say as a rule that merely because the defendant pleads a lease which may at best amount to recognition of the title of the plaintiff not necessarily of subsisting title plaintiff is entitled to recover. Coupled with an admission of title there is the plea that the relationship between the parties is of lessor and lessee and the suit being not one for recovery from the lessee the admission will not be of any avail to save the plaintiff from the applicability of Art.142 of the Limitation Act, 1908 except in the limited category of cases where the admission of the lease itself amounts to an admission of the possession of the plaintiff within 12 years. That is the category of cases where by pleading a lease brought into existence within 12 years of the date of suit defendant also admits that his lessor, the plaintiff was in a position to put him in possession within that date. In other words, in such a case there is directly an admission of possession of the plaintiff by the defendant within 12 years of the date of suit. This is the view which has been taken in the decision in Kalliani v. Kalliyani 1969 KLT. 362 to which I too was a party. I find that none of the decisions take a different view nor has any attempt been made to answer the approach made by the Division Bench. 4. The Full Bench of this Court, no doubt, noticed the case in Kalliani v. Kalliyani 1969 KLT.362. In Para.8 of the Full Bench decision, Mathew, J. speaking for the Full Bench, considered this question. But according to me the authority of the Division Bench has not in any way been doubted. The learned judge said: "Whether an admission that a defendant has taken a lease from the plaintiff within a period of 12 years of the date of the suit would per se amount to an admission of the possession of the plaintiff within a period of 12 years of the date of the suit is a matter on which we do not propose to express any final opinion". The learned judge again said thus: "Whether in a case where the lease set up in the written statement can be taken as an admission of a subsisting title so as to relieve the plaintiff of the burden of proof is a matter on which also we do not propose to express any opinion." The learned judge wound up the discussion by observing: "However; we do not think it necessary for disposing of this case to make any final pronouncement on these questions" 5. It is true that this court, referring to the decision of the Supreme Court in Mt. Murthi v. Mohammed Mirkhan AIR. 1965 SC. It is true that this court, referring to the decision of the Supreme Court in Mt. Murthi v. Mohammed Mirkhan AIR. 1965 SC. 875 noticed that in that case neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession of the plaintiff and this court further observed that: "The question whether when the pleadings disclose a case of dispossession or discontinuance of possession by the plaintiff, Art.142 of the Limitation Act of 1908 will be attracted was not decided in the case before the Supreme Court." 6. Apparently therefore this is a case to which I should apply the dictum in Kalliani v. Kalliyani 1969 KLT. 362. I could find that averments of possession and dispossession are to be found in the plaint in the suit. The plaintiffs allege that they were in possession of the suit property. The building alone was let out to the defendant and that taking advantage of the residence in the building he was attempting to trespass. Actually in Para.13 of the plaint a trespass and taking yield from one tree is referred to. But that of course is not an unequivocal averment of trespass of the whole property. But all the same the prayer in the plaint indicates that recovery of possession is prayed in the alternative in case the court finds that the defendant is in possession. Considering similar pleadings where plaintiff leaves the responsibility of finding out whether on the date of suit plaintiff is in possession or not to the court, I had occasion to observe that a premium should not be set on dishonesty and the plaintiff who pleads a case honestly should not be at a disadvantage. Normally it is the duty of the plaintiff to aver whether he is in possession on the date of suit and therefore does not seek to recover possession or whether he is out of possession so that court may grant him a decree for recovery of possession. The plaintiff is the best person to know whether he is in possession or not and it is be who can decide, better than the court, whether he would like to have a relief of recovery of possession and not an injunction. He should honestly plead whether be is in possession or not. The plaintiff is the best person to know whether he is in possession or not and it is be who can decide, better than the court, whether he would like to have a relief of recovery of possession and not an injunction. He should honestly plead whether be is in possession or not. It is only by way of indulgence that the court grants him relief of recovery when it finds that be was not in possession on the date of suit on the alternative prayer for recovery of possession. It is not uncommon in this country to find pleadings of this nature. When the court on the evidence finds that on the date of suit plaintiff is out of possession if there be an alternative prayer for recovery of possession as in this case the court grants a decree for recovery subject to the rules of limitation. But a plaintiff who avoids averring that he is out of possession, which is found at the trial as a fact, cannot thereby obtain an advantage by way of evidence of the application of Art.142. That would be the article applicable in regard to a plaintiff in a suit who honestly avers that he is out of possession on the date of suit. Therefore irrespective of the way in which he has camouflaged the pleadings, in the event the court finds that the suit is one for recovery of possession, the plaintiff having been dispossessed it should be treated as one to which Art.142 of the Limitation Act, 1908 applies. Therefore, in view of the findings in this case that plaintiff was out of possession on the date of suit, I must find that this is a case where there is a prayer for recovery on the basis of dispossession. 7. From the above discussion it would be evident that the main question in this case would be whether the plaintiff has succeeded in proving that he was in possession at any time within 12 years of suit. This is a question to which the court had no occasion to advert and that being the case I think the matter has to be remitted back to the trial court for a consideration of that question. I hold that it is for the plaintiff to show that he was in possession within 12 years of the date of suit. 8. I hold that it is for the plaintiff to show that he was in possession within 12 years of the date of suit. 8. Counsel for the defendant-appellant urges that in any event he will be entitled to the protection of S.13 of Act 1 of 1964. In other words, according to him, he is a deemed tenant who is entitled to fixity of tenure. It is on S.7 of Act 1 of 1964 that reliance is placed by him to urge his case of tenancy. S.7 together with the explanation is in the following terms: 7. Notwithstanding anything to the contrary contained in S.32 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Laud Reforms (Amendment) Act, 1969, of the land of another situate in Malabar shall be deemed to be a tenant if he or his predecessor-in-ioterest was continuously inoccupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967. Explanation Notwithstanding anything contained in the Indian Evidence Act, 1872, where a person has been continuously in "occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that be has been in such occupation honestly believing himself to be a tenant." It is true that the petitioner was in occupation of the property for more than 2 years within a period of twelve years immediately preceding the 11th day of April, 1967. Infact he has been in possession all along at least since 1962. as is now found. But that is not sufficient to entitle him to claim the benefit of S.7 The most important requisite of that section is that the occupation must be under the honest belief that he is a tenant, and if the circumstances belie any belief on his part of being a tenant then there is no case to apply S.7. But that is not sufficient to entitle him to claim the benefit of S.7 The most important requisite of that section is that the occupation must be under the honest belief that he is a tenant, and if the circumstances belie any belief on his part of being a tenant then there is no case to apply S.7. Where a person is found to be not holding under the arrangement of tenancy pleaded by him it would mean that he is not really a tenant and though he may profess to be a tenant be must know that the tenancy set up is false. Irrespective of his attempt to convince others that he is a tenant if he is really not a tenant, he cannot certainly say that he honestly believed that he is a tenant. The section applies to a different set of cases. May be that a person has taken a document of lease for a property which is ultimately found to be different from the property occupied pursuant to the lease. Such occupation may be under the honest impression that it is of the property leased. A person may take a lease from an incompetent person such as a de facto guardian of a minor whose properties cannot be alienated by such guardian. He may not know that in law his lease is void. He comes under this protection of the section. May be that a person takes a document which is bad due to other vitiating circumstances. Here again honest belief may save him. A person who comes into possession of a property may believe that he is a tenant and that belief may be honest. In such a case law wants to give protection irrespective of whether he is really a tenant in law or not and irrespective of the character of his possession. If that be the case the one case to which, it can definitely be said, S.7 would not be applicable is the case where actually the defendant setting up a contention that he is a tenant knows that he is not one such. When he knows that he is not a tenant he cannot honestly believe that he is a tenant. When he knows that he is not a tenant he cannot honestly believe that he is a tenant. If as a matter of fact the tenancy set up is false then the defendant, merely because he has set up the tenancy, could not have believed that there was such a tenancy. 9. Now I will consider whether the explanation to the section makes any difference. I am referring to this because it is attempted by counsel Shri Balasubramonian rather very vehemently to contend that the explanation makes all the difference. It is true that the explanation allows a presumption to be made merely because of occupation of any person for a particular period that the occupation is under honest belief. But this presumption is not an irrebuttable presumption. It is a presumption until the contrary is proved. Contrary may be proved by evidence or by circumstances of the case. If as in the circumstances here the finding binding on the parties indicates that the defendant is really not a tenant the presumption stands automatically rebutted. Here is as adjudication as between the parties not in other proceedings but in the same proceedings and which is one of the questions for decision in the very appeal before the court that the defendant is not a lessee and that being the case the explanation will not be of any assistance. Therefore the benefit of S.7 will not be available to the defendant here. 10. The defendant has a contention that he is entitled to the right of a kudikidappukaran. That of course is a matter which is not my concern here. The matter is going back for consideration of the question of limitation. The question whether the defendant is a kudikidappukaran or whether under any provisions of law other than what has been adverted to here defendant is entitled to kudikidappu right will be considered by the court below. If any evidence is sought to be adduced by parties on the question of possession, they must be permitted to do so because parties were perhaps labouring under the impression that in view of the decision In Marimuthu Goundan v. Thambi 1960 KLJ.1304 plaintiff has no duty to prove his possession within 12 years. Parties are allowed to adduce such evidence. But at any rate the suit will be disposed of expeditiously. Parties are allowed to adduce such evidence. But at any rate the suit will be disposed of expeditiously. In the result, the decrees of the courts below are set aside and the case is remitted back to the trial court for consideration of the question of possession and availability of kudikidappu right to the defendant. Costs in this appeal will abide by the costs in the suit. Court fee paid on the memorandum of second appeal will be refunded to the appellant.