LINGAMMA Vs. PUTTE GOWDA AND

JUDGEMENT

(1.) The following questions of law are referred by a Bench consisting of the learned Chief Justice and Hombe Gowda, J., to the Full Bench for decision as per Order dated 12-12-1960:

(2.) The controversies about the true scope of Article 142 had been quietened years back by the decisions of the several High Courts till it was reopened recently by the decision of this Court in Basanna v. Appa Rao, AIR 1959 Mys 227. All the High Courts in India had uniformly taken the view that a plaintiff who sues on the basis of his title, has not only to prove his title, but also his possession within 12 years from the date of the suit. This reference became necessary in view of the decision in Basanna's case AIR 1959 Mys 227.

(3.) Before proceeding to examine the decisions on the subject, we shall first go to the language used in Article 142. Article 142 speaks of suits for possession of immoveable property when the plaintiff while in possession of the property, has been either dispossessed or has discontinued his possession. Article 144 is a residuary Article. It relates to suits for possession of immoveable property or any interest therein not otherwise specifically provided in the "Act". It is quite clear, nor is it disputed, that Article 144 can only apply to cases which are not governed by any other article in the "Act". In the present case the controversy centres round Articles 142 and 144, No other Article is relevant for our purpose. Therefore, we have to first see whether the questions formulated could be reasonably brought within the ambit of Article 142. In a case where dispossession or discontinuance of possession is either admitted or proved, there is no difficulty. But difficulty arises where no specific evidence is available about dispossession of the true owner or his discontinuing his possession. What then is the position? In the absence of evidence to the contrary, the true owner of the property must be deemed to have been in possession of the property. The dictum possession follows title is well known and well recognised by Courts. Therefore, when a person establishes his title to the property, law presumes that either he or his predecessor-in-title was deemed to have been in possession of the property, at some point of time. If the plaintiff either admits or it is proved that he was not in possession of the suit property at the time of the institution of the suit, then necessarily he must have either been dispossessed or he must have discontinued his possession at some point of time prior to the suit. "Dispossession" occurs where the possession of the true owner is taken away by a third party. "Discontinuance" of possession relates to a case where a true owner consciously gives up his possession and some third party gets into possession. For the reasons mentioned already, every suit for possession based on title attracts to itself the mischief of Article 142. It a person having title to the property sues for possession of the suit property on the allegation that the defendant was his tenant but fails to establish the tenancy pleaded, then it follows that he must have either been dispossessed or that he had discontinued his possession prior to suit. Where a plaintiff pleads permissive possession and the defendant admits his possession but denies that he is in permissive possession (in either case the defendant's possession being admitted) if the plaintiff fails to establish his case, then it follows that the defendant's possession was without the consent of the plaintiff. From the time the defendant holds the property without the consent of the plaintiff, then the plaintiff must be deemed to have been dispossessed. In such a case, law requires the plaintiff to establish that he was in possession of the suit property within 12 years from the date of the suit. Otherwise, his rights get barred under Article 142.