BHAGEERATHI AMMA Vs. GOVINDA KURUP

JUDGEMENT

(1.) The suit property is the western portion, measuring 60 cents, of a property bearing survey No. 1036 and having an extent of 2 acres and 15 cents on the whole. The suit was to declare the plaintiffs title and possession in respect of the suit property and in the event of proved dispossession by the defendants, to recover possession with mesne profits and for other reliefs. The plaintiffs were given a decree by the first court declaring their title and allowing them to recover possession with mesne profits and in appeal the Subordinate Judge dismissed the suit. The plaintiffs have come up in Second Appeal.

(2.) The first court approached the case as if it is governed by Art.144 and not Art.142 of the Indian Limitation Act, but the appellate court applied Art.142. The first prayer in the plaint being for declaration of possession also, the plaintiffs had to prove possession in order to succeed and a decree for recovery of possession would then be out of place. The decree of the first court allowing recovery of possession implied, that the defendants were in possession or that the plaintiffs were out of possession; in other words, it implied either dispossession of the plaintiffs or discontinuance of possession and Art.142 is at once attracted. See Maria Thresia v. Kuryan Varkey, 30 TLJ. 954. The plaintiffs having succeeded in the first court only on the alterative prayer for recovery of possession and the arguments addressed in Second Appeal On their behalf being in support of that prayer, it may be taken that the plaintiffs do seek recovery of possession. In that event they cannot succeed unless they prove in addition to title, that they have been in possession of the property within 12 years of the suit. This has been so held by a full bench of the Madras High Court in Official Receiver of East Godavari at Rajamundry v. Chaya Govindaraju, AIR 1940 Mad. 798 . The first court having applied Art.144, its judgment is vitiated by this fundamental error and cannot be sustained.

(3.) There is very little evidence for the plaintiffs to establish possession within 12 years of the date of the suit. Exts. J & M, the mahazar prepared in a criminal case and the report of the commissioner prepared ex parte, which were relied on for showing that there is a kayyala or boundary mark between the property of the first defendant on the west bearing survey No. 1037 and the suit property on the east, cannot be acted upon for the reason that those who prepared them have not been examined. The prior records Exts. C and D and the tax receipts, Exts. E and F proceed merely on the basis of survey number only, but the defence is that the first defendant was in possession of the suit property as part of survey No. 1037, whatever be its real survey number. Of the plaintiffs witnesses even the chief examination of Pw. 1 was not complete, and