KUNHAMBU NAIR Vs. KUNHAMMARU AMMA

JUDGEMENT

(1.) If the decision of this court in Kalliani v. Kalliyani 1969 KLT 362 it correct, I think the decrees of the courts below call for interference. That is because the main controversy is whether the suit for recovery of possession I am assuming so and I will, in due course, point out that I treat this as a suit for recovery of possession is barred by limitation under Art.142 of the Indian Limitation Act, 1908 (this is the Act applicable to this case). The plaintiffs contend that they were in possession of the suit property and the defendant was in occupation of a building therein under a rental arrangement which building was destroyed and therefore the tenancy with regard to the building has terminated. They seek recovery of possession of the property apparently on the basis that defendant trespassed therein. Defendant sets up a tenancy with regard to the suit property in favour of his father that having commenced, according to him, about 40 years earlier. On the evidence in the case the plea of tenancy set up by the, defendant has been found to be not proved. Defendant is found to be a person who was originally allowed to occupy the building in the property as a tenant but it is also found that on the date of suit he was in possession not only of the building but the property also. On these facts, the court below, relying on the decision of this Court in Marimuthu Goundan v. Thambi 1960 KLJ 1304 held that the plea by the defendant of a lease which be was unable to prove is sufficient to entitle the plaintiff to a decree. It is the correctness of this that is under challenge in the appeal by the defendant in the suit.

(2.) The decision in Marimuthu Goundan v. Thambi 1960 KLJ 1304 was referred to by this Court in Kalliani v. Kalliyani 1969 KLT 362 and that was distinguished. This Court said:

(3.) Of course, some decisions of the courts in India seem to state a principle that in a suit for eviction if the defendant sets up a plea of lease he would thereby be admitting the title of the plaintiff and though the plaintiff would normally be called upon to prove his possession within 12 years of the date of suit to get a decree, without any such proof, that would not be the case when there is such admission and hence the plaintiff would be entitled to a decree, This principle could very well be understood in a case where the admission by the defendant is of a lease which has admittedly come into existence within 12 years of the suit. That is so because the very fact that he sets up a case of lease may amount to an admission by him that the lessor was in a position to bring about such a lease which in turn may amount to an admission of the lessor's possession on the date when he is alleged to have brought about the lease. If in a suit for possession a plaintiff has to show possession within 12 years of suit irrespective of the question whether defendant has been in possession for the full term of 12 years or not, I fail to see how a defendant who sets up a false plea of lease in a suit for eviction should be in a more disadvantageous position simply because he has set up a false plea. I cannot conceive a court penalising the defendant for the plea which he has set up and which has been found to be false. Or, to put it more emphatically, I would say I see no reason why the plaintiff should get an undue advantage in such a suit simply because the defendant has chosen to set up a plea which he has failed to prove. Of course, if the plea so set up by the defendant is one of admission of the plaintiff's possession within 12 years of suit or involves any such admission the position is different. It is evident that, if in a suit to which Art.142 of the Limitation Act, 1908 applies even if a defendant in possession on the date of suit happens to be in possession for a period much less than 12 years and he does not claim possession under any person who was previously in possession the plaintiff will be non suited if plaintiff has been out of possession for more than 12 years. Therefore in such a suit it is not as if by any adverse possession of the defendant in that suit the plaintiff's title is considered as extinguished. Plaintiff loses his right to recover possession because he has not come to court to recover such possession within 12 years he was dispossessed irrespective of the question whether defendant in the suit is the person who so dispossessed him or one claiming under such person and also irrespective of the question whether the person so dispossessed has perfected title indefeasible by lapse of time. It appears to me quite illogical to say as a rule that merely because the defendant pleads a lease which may at best amount to recognition of the title of the plaintiff -- not necessarily of subsisting title -- plaintiff is entitled to recover. Coupled with an admission of title there is the plea that the relationship between the parties is of lessor and lessee and the suit being not one for recovery from the lessee the admission will not be of any avail to save the plaintiff from the applicability of Art.142 of the Limitation Act, 1908 except in the limited category of cases where the admission of the lease itself amounts to an admission of the possession of the plaintiff within 12 years. That is the category of cases where by pleading a lease brought into existence within 12 years of the date of suit defendant also admits that his lessor, the plaintiff was in a position to put him in possession within that date. In other words, in such a case there is directly an admission of possession of the plaintiff by the defendant within 12 years of the date of suit. This is the view which has been taken in the decision in Kalliani v. Kalliyani 1969 KLT 362 to which I too was a party. I find that none of the decisions take a different view nor has any attempt been made to answer the approach made by the Division Bench.