PADMANABHA PANICKER Vs. KOCHUPILLA NAIR

JUDGEMENT

(1.) This Second Appeal arises out of a suit for recovery of possession of properties with arrears of rent. According to the plaint allegations, the plaint properties originally belonged to one Narayana Pillai and he sold the same to his wife Kallyani Amma, who leased it to the defendant in Meenom 1108 on a rent of 15 paras of paddy per year. Subsequently, Kallyani Amma sold the properties to Govindan Nair, and Govindan Nair in his turn sold them to the plaintiff. On the above allegations, plaintiff brought the suit for recovery of possession of the properties with arrears of rent. The defendant denied the oral lease as well as the title of the plaintiff and his predecessors to the plaint properties and contended that they were being held by the defendant's tarwad as their tarwad properties and that in any event plaintiff was not entitled to recover possession of properties on account of limitation and adverse possession. The courts below concurrently found against the oral lease, but they also concurrently found that the properties originally belonged to the tarwad of Kallyani Amma's husband. Holding that since the properties originally belonged to the plaintiff's predecessor in title, it was for the defendant to establish his plea of limitation and adverse possession and that he had not proved that he had not been in adverse possession for over 12 years the Trial Court gave a decree to the plaintiff for recovery of possession of properties. On appeal by the defendant the lower appellate court held that the suit was governed by Art.130 of the Travancore Limitation Act (corresponding to Art.140 of the Limitation Act) and that the suit was barred by limitation as the plaintiff had no evidence to show that he was in possession of the property within 12 years from the date of suit. Consequently it allowed the defendant's appeal and dismissed the suit. Plaintiff has hence filed this second appeal.

(2.) It was contended by the appellant's counsel that the view of law taken by the lower appellate court is wrong and that the suit is really governed by Art.132 of the Travancore Limitation Act and not Art.130. A Division Bench of this Court has considered the question in S.A. No. 246 of 1124 and held that suits of this type are governed by Art.130 of the Limitation Act and not by Art.132. To that effect is also the decision in Kannan v. Suppukutty Menon (1949 TC LR 80). The decision in Kunjukunju Amma v. Kunju (23 TLJ 412) and Thiruvambalam Pillai v. Sivachidambaram Pillai (57 TLR 451), relied upon by the Trial Court, have been noticed in S.A.No. 246 of 1124 (Tr.) and this Court has refused to accept them as laying down correct law.

(3.) In the circumstances, I hold that the decision of the lower appellate court is correct and dismiss the second appeal with costs.