KALLIYANI Vs. KALLIANI

JUDGEMENT

(1.) The appeal is by the 1st defendant in a suit for possession he has lost in the Courts below. The only question for consideration in the appeal is whether the suit is barred by limitation under the Limitation Act of 1908 that is the statute applicable, the suit having been instituted when the said Act was in force. The plaintiff, who is the daughter of one deceased Manni, claimed title to the plaint properties on the basis of a lease, Ext. A1 of 1928, obtained by the deceased Manni, Manni's sisters and her brother, the second defendant, from the Kanam - kuzhikanamdar of the property. The other cotenants transferred their right to Manni under Ext. A2 dated 17-5-1935 whereafter according to the plaintiff, the deceased Manni was in possession and enjoyment; and on her death, the tenancy rights devolved on the plaintiff. The 1st defendant, who is one of the sisters of Manni, was allowed to reside in the building in plaint item 1 even during the life time of Manni; and according to the plaintiff, she continued to be residing therein. Item 2 of the plaint property was leased to one Ramunni in 1942 by the deceased Manni, who attorned to the plaintiff after the death of Manni, and later surrendered the property to the plaintiff. The plaintiff also alleged that subsequently plaint item No. 2 was leased to one Kavunkal Krishnan on 12-3-1950, and that Krishnan surrendered the same after the expiry of the term. According to the plaintiff, she was in possession of the plaint properties till 1958, but was obstructed from enjoying the property by defendants 1 and 2 in 1958. Therefore, the plaintiff sued the defendants alleging that she discontinued possession of the property from 1958 due to the conduct of defendants 1 and 2.

(2.) The 1st defendant, in answer to the claim for eviction, set up an oral lease of the plaint properties alleged to have been granted to her by the deceased Manni in the year 1940. This lease was denied by the plaintiff. The courts below have found the case of oral lease set up by the 1st defendant to be not true. All the same, a decree has been granted to the plaintiff for recovery of the property on the ground that the 1st defendant having failed to prove the tenancy set up by her the plaintiff is entitled to recovery of possession. The decision of the courts below is based on the decision of this court in Marimuthu Goundan v. Thampi ( 1960 KLJ 1304 ).

(3.) The allegation of the plaintiff in the plaint is one of prior possession and discontinuance of possession. Recovery is claimed on the basis of anterior title of the plaintiff. The averments in the plaint squarely attract Art.142 of the Limitation Act of 1908. It is well settled that a plaintiff, who is suing for possession of property in the occupation of another, cannot rest his case on title alone. He must show that he has exercised rights of ownership by being in possession within 12 years of suit. Would this principle apply in a case where in answer to the claim for possession, the defendant sets up a tenancy, which is disputed by the plaintiff It is this question that engages our attention in this appeal, in view of the reliance placed by the lower appellate court on the decision in 1960 KLJ 1304.