BASWANNEPPA YELLAPPA AND Vs. BASAVANNAPPA

JUDGEMENT

(1.) One important point of limitation arises in this Second Appeal and that is as to whether the Article applicable is 142 or 144 of the Limitation Act. According to the plaintiffs the property in suit which is a house together with an open site, originally belonged to one Bhimappa Hadapad. After his death it came to his son, who was originally defendant 2 in this case and who has been later on transposed as plaintiff No. 3. The plaintiff's claim to have purchased the suit property from that person on 14-5-1948 for Rs. 200/-. Plaintiffs 1 and 2 entered into possession and made wahivat of it. In June 1948, defendant 1 caused obstruction to the wahivat. Plaintiffs therefore filed a suit in L. C. No. 90/1949 against the defendants. In the meantime, the defendants managed to dispossess plaintiffs 1 and 2 and they entered into possession. Hence this suit was filed for pos-possession against defendants 1 and 2. The defendants denied plaintiff's title to the property and also their possession at any time. They denied the sale by Bhimappa's son as well including his title to the property. According to the defendants, they maintained and treated well the said Bhimappa during his old age and illness by giving him medicinal aid also at a cost of Rs. 150/-. Bhimappa who spent his last days with the defendants and who was their relative gave over the suit property to them on the only condition that they should get it repaired and pay the Municipal taxes and enjoy to property permanently. Accordingly they claim to have spent Rs. 300/- over the repairs of the house and to have been enjoying that property since the time of Bhimappa. They further allege that thereby they have become owners of the property by adverse possession. The lower court accepted the plaintiffs' case and decreed the suit. The same was reversed in appeal, and the suit was dismissed. The plaintiffs 1 and 2 have come up in Second Appeal.

(2.) The main point urged by the learned Advocate for the Appellants is that the plaintiffs have made two alternative pleas. Firstly, their case is that they have become owners by purchase of the property and entered into its possession but were subsequently dispossessed by defendants 1 and 2. So far as this part of their claim is concerned, the learned advocate concedes that Art. 142 of the Limitation Act is applicable since both the lower courts have held that the plaintiffs 1 and 2 have established their title, but that they have failed to establish their title, but that they have failed to establish their possession within 12 years next before suit; he cannot agitate the question of fact in respect of possession in Second Appeal. He contends that their was an alternate case made out by the plaintiffs in para 5 of the plaint. There it is specifically stated that in case the plaintiffs fail to establish possession within 12 years, their alternate case is that in view of their being owners of the property by reason of the sale, their title should be held established and a decree for possession should follow on the basis of title. It is further urged that since the defendants clearly set up adverse possession, the burden is on them to establish the same under Art. 144 of the Limitation Act, and since they have not discharged this burden, it is urged that there ought to be a decree for the plaintiffs. As against this, the learned Advocate for the respondents contends that the Article applicable to this case is Art 142. Since the plaintiffs have failed to establish their possession within 12 years next before suit, it is rightly dismissed. Hence, it is necessary to consider which of the two is the proper Article that is applicable to the facts of this case.

(3.) The wording of the two Article is not happy. It lends itself to different constructions. That is how there have been numerous divergent decisions of the various High Courts. In this case, each side cites certain rulings as supporting its own version. On the face of it Article 142 is applicable to suit for possession of immovable property, when the plaintiff contends that he has been dispossessed or that he has discontinued possession while he was in possession of the property. In such case the plaintiff has to prove that within 12 years prior to suit he was dispossessed or that he has discontinued possession. This Article implies that the plaintiff must have been in possession some time within 12 years next before suit. If not the suit will be barred by limitation. He will, therefore, necessarily have to prove that he was so dispossessed (if there was such a dispossession) within the said period. It is contended by the learned Advocate for the appellants that the provisions of the Article are to be applied only in respect of cases where the suit is based on proprietary title. Although it cannot be denied that the previous possession within 12 years next before suit is the necessary ingredient for the application of this Article, it would too much to say that the Article is intended for cases of possessory title only or even to say that it does not imply that the plaintiff has to prove his ownership also. To my mind, the cases that are based on possessory title alone are those contemplated by S. 9 of the Specific Relief Act. There, a person can claim that he should be put in possession of the property on the mere ground that he was in peaceful possession of the property and that he was dispossessed by another person. To such a suit Art. 3 of the Limitation Act applies, the limitation being six months from the date when the dispossession occurs. In respect of suits under that Article, the plaintiff is under no obligation with reference to any title to the property, he will get the relief even if he proves mere peaceful possession of the property ending within the period of limitation. The same cannot be said of Art. 142. If the obligations were the same, it is possible to accept that there would have been another Article of limitation and that prescribing a much longer period. It cannot be doubted that what the plaintiff has to prove under Art. 142 is not only that he has a title to the property but also that he was dispossessed or that he discontinued possession within 12 years next before suit.