FRANCIS M V Vs. V LINGAMMA

JUDGEMENT

(1.) It is a defendant's appeal against the Judgment and Decree of the Court of X Additional City Civil Judge, Civil Station, Bangalore, in 0. S. No. 8269/ 1980 dated 30-1-1986. The respondents plaintiffs filed a suit for declaration of title and for possession of the suit property having failed to evict the appellant-defendant from the suit schedule premises in proceedings taken under the Karnataka Rent Control Act. The plaintiffs pleaded that the defendant was an employee of the owner cf the property who was none other than the husband of the 1st plaintiff and that as such employee in the engineering workshop he was permitted to occupy the suit schedule premises as a licensee and their attempt to evict him having failed for the reason given by the court under the Karnataka Rent Control Act, they were forcid to sue for declaration of their title and for possession.

(2.) Defendant resisted the suit. It is unfortunate that his written statement has not been summarised in detail by the trial Court. It is simpiy stated that "primarily his defence is one of adverse possession". On such a pleading as many as six issues were framed and were as follows :

(3.) Mr. Shevgoor, learned counsel appearing for the appellant in this court has not made any serious challenge to the finding recorded in regard to the title established by the plaintiffs. On the other hand he has founded his case entirely on the oral evidence of the defendants who claimed in their evidence title to the suit schedule premises by adverse possession. After discussing the identical arguments advanced before the trial Court, the trial Court referring to Article 65 of the Limitation Act and some of the leading cases thereto particularly the decision of this Court in the case of M S W. Gaffar Sab v A. G. W. Mohammad Hayath (I.L R 1985 Karnataka 1614) came to the conclusion that the law of limitation being procedural the provisions existing on the date of the suit apply to the case end therefore Article 65 of the Limitation Act, 1963 ; was applicable under which if a suit was brought on the basis of title and if the plaintiff proved his title, it was incumbent upon the defendant to show that his possession had become adverse to the real owner in order to maintain a plea of adverse possession. A specific averment as to the point of time at which the possession which was otherwise for the benefit of the object of the trust, turned hostile and adverse is on essential ingradient of a plea of adverse possession. That ruling of this Court was based on an earlier ruling of the Supreme Court in Karim's case (AIR 1964 SC 1254). Similarly other cases were also noticed by the trial Court and placing reliance on them, it came to the conclusion that no amount of proof would come to the aid of a party in the absence of necessary pleadings. The trial Court however adverted to the oral evidence of D.W, 2, defendant appellant before us, as well as the evidence of his son and relying on the contradiction which was material to the case of the defendant, came to the conclusion that the plea of adverse possession was not proved much less' pleaded. In that circumstance, we do not see how in this Court we must reverse the finding of the trial Court on an identical argument addressed in this Court. The appeal is without merit and therefore it is liable to be rejected and it is so rejected. Appeal is rejected.