PAPPY AMMA Vs. PRABHAKARAN NAIR

JUDGEMENT

(1.) This is an appeal from the judgment and decree of a learned single Judge allowing a second appeal preferred by the plaintiff from the decree of the Subordinate Judge's Court, Irinjalakuda, reversing the decree passed by the Munsif in a suit for recovery of possession of the plaint property. The plaint property was purchased by the plaintiff in 1101 from the 2nd defendant and was in his possession and enjoyment. The property lying immediately to the east of the plaint property also belonged to the plaintiff. That property was demised to the 1st defendant under a registered lease deed in the year 1109 (Ext. P2). The plaintiff filed O. S. No. 674 of 1951 in the Munsif's Court, Irinjalakkuda, for a declaration of his possession of that property and for an injunction restraining the 1st defendant from entering upon it. alleging that Ext. P2 lease deed had not come into effect. The 1st defendant was appointed receiver on 5-12-1951 of the plaint property in that case which also included the plaint property in the suit. The plaintiff sought, by Ext. D4 application dated 14-5-1952, an amendment of the plaint by deleting the plaint item here from the plaint schedule in that case. That application was allowed on 13-6-1952. Thereafter the plaintiff applied for termination of the receivership of the 1st defendant of the plaint property; that was not allowed by the court. That suit itself was dismissed. The appeal and second appeal preferred from the decree were also dismissed. The present suit was filed on 14 10 1957, corresponding to 28 2 1133 M. E., on the allegation that the plaintiff was in possession of the plaint property after its purchase in 1101 under Ext. Pi, that the 1st defendant got possession of it under the order appointing her as receiver in O. S. No. 674/1951, and that her continuance in possession was unauthorised and prayed for recovery of possession of the property.

(2.) The 1st defendant contended that she was holding the plaint property under an oral lease granted by the plaintiff in 1101, that in 1109 a registered lease of the plaint property as well as of the eastern property was executed, by her as evidenced by Ext. P2, and that she was in possession of the property, at any rate, from 1109. She further contended that even if the plaint property was not included, in Ext. P2 lease, she had prescribed for a leasehold interest in the property as she was in possession of the property with the animus to possess it as a lessee.,

(3.) The Trial Court found against the oral lease set up by the 1st defendant. It also found that the plaint property was not included in Ext P2 lease deed, that the plaintiff was in possession of the plaint property before the 1st defendant was appointed receiver in O. S. No. 674/1951; and decreed the suit. The 1st defendant preferred an appeal to the Subordinate Judge's court from the decree. The appellate court reversed the decree holding that even assuming that the plaint property was not included in Ext. P2 lease, both parties were under the impression that the plaint property was included in Ext. P2 lease deed, and as the. 1st defendant was in possession of the property with the animus to possess it as lessee, she has prescribed for title as lessee to the property. So the appeal was allowed and the suit dismissed. It was against this decree that the second appeal was preferred. The learned Judge found that the plaint property was not included in the lease deed Ext. P2 and that the plaintiff was in possession of the property before the 1st defendant was appointed receiver in O. S. No. 674/1951 and that, at any rate, in view of the decision of this court in Marimuthu Goundan v. Thambi 1960 KLJ 1304 holding that when a defendant admits in the written statement that he is in possession as a lessee, the plaintiff has no burden to prove possession within 12 years of the suit as the 1st defendant had admitted the title and the constructive possession of the plaintiff by claiming possession of the property only as lessee thereof and allowed the appeal and decreed the suit. It was against this decree that the present appeal has been preferred: