KUNJI AMMA Vs. NARAYANAN SREEDHARAN

JUDGEMENT

(1.) The second appeal arises out of a suit for partition and recovery of possession filed on 30-3-1964. (The date is crucial in view of the impact of the relevant provisions of the Limitation Act, which had undergone a change after 1-1-1964 when the new Act, Limitation Act, 1963 (Act No. 36 of 1963), came into force repealing the earlier Indian Limitation Act, 1908). The litigation had a chequered career. The controversy has narrowed down in the second appeal. The courts below have taken the view that long before 1-1-1964 the plaintiffs had lost their title as a result of their not having been in possession of the property for 12 years. The title to the property thus got extinguished by force of the operation of law. In that view of the matter, the plaintiffs could not avail of the more advantageous position in law which had been conferred under the amended Limitation Act. The suit had been dismissed on that basis. The crucial question in the second appeal is whether the approach and conclusion of the courts below are in any way vitiated by a substantial error of law.

(2.) There are two schedules to the plaint, A and B, the former taking in 41 cents out of a total extent of 66 cents comprised in Survey No. 3638. The remaining extent of 25 cents in that survey number is described as plaint B schedule. Kuttichan Padmanabhan was the admitted owner of the above property. Plaintiffs 1 to 3 and one Narayanan were his daughters and sons. Defendants 1, 3 and 6 were the children of Narayanan born to his wife, the 7th defendant in the suit.

(3.) Padmanabhan had executed Ext. P1, gift deed on 9-5-1102 M E. in favour of his children and children's children in the female line, conserving for him a right of enjoyment for life. He executed another gift deed Ext. P2 on 15-3-1112 in favour of plaintiffs 1 and 2, reserving a life estate for himself in the property. Padmanabhan died in the year 1112. Soon thereafter Narayanan filed a suit for partition of the properties dealt with under Exts. P1 and P2, for setting aside Ext. P2 gift deed and some of the directions contained in Ext. P1. It is unnecessary to refer in detail to the progress and proceedings in the above litigation. It is sufficient to note that under Ext.D7 judgment rendered ultimately by the Travancore High Court the claims of Narayanan were finally turned down. That decision was on 11-7-1123 corresponding to 23-2-1948. Narayanan, however, continued possession of the property and the building there in which had already been put up by him with the permission of his father. Narayanan passed away in the year 1957. On his death, there were attempts at taking forcible possession of the building and the property from defendants 1 and 2 who continued in possession of that property even after the death of Narayanan. S.145 of the Criminal Procedure Code was set in motion and a receiver was appointed in these proceedings. Such violent acts for possession even led to a murder. The possession of defendants 1 and 2, according to the evidence, continued even thereafter. The present suit was instituted, as stated earlier, only in 1964. On an examination of the entire evidence in the case including the evidence furnished by the oral testimony of Dws. 1 to 13, the courts below have come to the conclusion that atleast as from the date of the judgment Ext. D7 the possession of the property was beyond doubt hostile and adverse to the true owners. The defendants had produced the Corporation tax receipts for the building in the property starting from 1951 onwards. There was absolutely no satisfactory or reliable evidence on the side of the plaintiffs. On the side of the plaintiffs, the only witness who gave evidence was Pw. 1. He was ignorant of the possession of defendants 1 and 2. As correctly noted by the Lower Appellate Court, he had no case about defendants 1 and 2 having been dispossessed. When Ext. D7 judgment was pronounced, even the pretence of a possession in the capacity as a coowner came to an end. Thereafter, the possession was indeed that of a stranger or a trespasser. Once 12 years had elapsed from the commencement of such possession on 23-2-1948 the title of the real owners would get extinguished. That would be on 22-2-1960. If that be the position, at the time when the suit was instituted the plaintiffs did not have any title at all. Even for invoking the more advantageous article of the Limitation Act Article 65 the title has to be established. When the title is extinguished long prior to the commencement of the new Limitation Act, Art.65 cannot be successfully invoked by the plaintiffs. This view taken by the courts below is not in any way vitiated by any error of law.