JOY SEBASTIAN Vs. SANKU KRISHNAN
HIGH COURT OF KERALA
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(1.) This appeal is by the plaintiff in a suit for. declaration of title and recovery of plaint item No. 1, which is 2 cents of a larger plot of which the remainder is admittedly in possession of the plaintiff. Plaint item No. 2 is a small building put up on item No. 1, by the 1st defendant.
(2.) The plaintiff purchased the property under Ext. P1 dated April 27, 1957. The plaint concedes that long before his purchase, defendants 1 and 2, husband and wife, were in occupation of suit item No. 1, under permission of the prior owners of the property, as kudikidappukars but urges that they ceased to be kudikidappukars when they acquired 25 cents 'of land elsewhere und er Ext. P4 dated December 2, 1952, and that therefore he is entitled to recover the land from them after removal of their building. The 1st defendant contended 2nd defendant remained ex parte that the land in his possession is not part of the plaintiff's property but is poramboke lands, that even if it is plaintiff's land he has perfected a title thereto by long adverse possession, that the allegation that his occupation is under permission given by plaintiff's predecessors is false and that if the plaintiff is found to have title to the property he must be deemed to be a kudikidappukaran entitled to immunity from eviction. The Munsiff found that, except 95 sq. links which alone is poramboke, the land in the possession of the defendants belongs to the plaintiff, that the 1st defendant is a kudikidappukaran and that the plaintiff has failed to prove subsisting title to suit item No. 1, and on the last finding dismissed the suit. On appeal the Additional District Judge affirmed that decree, holding that the defendants' possession was not under permission of the plaintiff's predecessors-in-interest, that the plaintiff lost title by limitation and that the 1st defendant's kudikidappu rights have not been forfeited by the purchase of other land under Ext. P4, which is in the name of the 2nd defendant alone. The plaintiff has come up in second appeal.
(3.) The Munsiff observed:
"In the nature of the respective contentions in this case it is for the plaintiff to establish that himself or his predecessors-in-interest have been in possession of the property within 12 years before suit or that the possession of the defendant is permissive. ....It has been found under issue No. 1 that the major portion of the plaint property forms part of Survey Number 225/38 the registered holding of the plaintiff. But since plaintiff has failed to establish subsisting title I hold that the suit is barred by limitation."
The Additional District Judge's observation is:
"The lower court was therefore perfectly justified in negativing the plaintiff's case of permissive occupation and finding that title to the property was lost by limitation the defendants' possession from 1114 (1939-40) being admitted."
Neither has found adverse possession proved; the Munsiff observed the plaintiff to have failed to prove possession within 12 years before suit and therefore to have failed to establish a subsisting title; and the Additional District Judge took that to mean the plaintiff to have lost title to the property by limitation and defendants' possession. Obviously the Courts below assumed the suit to be governed by Art.142 of the Limitation Act, 1908. I am afraid they have overlooked the averments in the pleadings and have assumed all suits for recovery of immovable property to be governed by Art.142. As has been ruled by a unanimous Bench of five learned Judges of the Supreme Court in Gurbindar Singh v. Lal Singh (AIR 1965 S. C. 1553):
"In order that Art.142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession. It is no one's case that Lal Singh ever was in possession of the property ... In the present suit both Lal Singh and Pratap Singh (the plaintiffs) assert their claim to property by succession (to Smt. Raj Kaur who died about 20 years before suit)...So far as the present suit is concerned it must, therefore, be said that the plaintiffs respondents were never in possession as heirs of Raj Kaur and consequently Art.142 would not be attracted to their suit.
It is in these circumstances that we have to consider whether under Art.144 the suit is barred by time. The starting point of limitation set out in col. 3 of Art.144 is as follows:
'When the possession of the defendant becomes adverse to the plaintiff'
(After repelling "an interesting argument to the effect that if persons entitled to immediate possession of land are somehow kept out of possession may be by different trespassers for a period of 12 years or over, their suit will be barred by time", the judgment continues) ... What we are concerned with is the language used by the legislature in the third column of Art.144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word 'defendant' is defined thus in S.2 (4) of the Limitation Act thus:
' 'defendant' includes any person from or through whom a defendant derives his liability to be sued.'
No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents' suit is within time. ...."
It is pertinent to note here that Smt. Raj Kaur died in 1930, that the property descended to her two daughters "in absolute estate" (vide Para.7 of the judgment), that the daughter Mahar Kaur and, after her, her sons the plaintiffs had been out of possession for nearly 20 years before suit which was instituted in 1950 only, and yet their Lordships held
"the plaintiffs respondents were never in possession as heirs of Raj Kaur and consequently Art.142 would not be attracted to their suit."
Their Lordships held further "the respondents' suit is within time and has been rightly decreed" as the defendants appellants could not prove adverse possession with them and persons through whom they claimed for 12 years of the suit. It is also pertinent to note that Raj Kaur was in possession but on her death her daughter did not get possession of the properties. Their Lordships' dictum seems to be categorical that
"in order that Art.142 (Limitation Act) is attracted,
"the plaintiff must have been in possession of the property, and
"(the plaintiff) should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession.";
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