KURIEN EAPEN Vs. THOMMI MATHU

JUDGEMENT

(1.) The unsuccessful plaintiff in a suit for declaration of title and recovery of possession of immovable property is the appellant before me in this S. A. His case was that the plaint property, which is a paddy field, 6 cents in extent, was obtained by him under Ex. C. partition deed of 1105 in his family and that he, while in possession of this 6 cents, gave it on lease to the defendants who were in possession of the balance of 17 cents in the same Sy. No. and that the defendants having defaulted to pay rent from 1122 the suit was necessitated. The lease set up by the plaintiff was denied by the defendants, who contended that they had title to the property and that they were in possession of the property all along. The courts below have found the title of the plaintiff; but dismissed the suit on the ground that the plaintiff failed to prove possession within 12 years of the suit.

(2.) The plaintiff contends in this appeal that on the allegations in the plaint Art.142 in the Schedule to the Limitation Act 1908 (that being the Act applicable) would not apply. According to him the averment in the plaint is only that defendants were put in possession as lessees and such averment cannot be read as amounting to a plea of prior possession and dispossession. Even if the lease alleged is found against, as is the case here, the article that would be applicable to a suit, according to the counsel for the plaintiff, is Art.144 in the schedule to the Limitation Act, 1908. If so, the learned counsel contends, the courts below were in error in dismissing the suit without considering whether the defendants had proved the case of prescription by their adverse possession. It is the case of the plaintiff that the evidence in the case would not be sufficient to prove a case of adverse possession by defendants and at any rate the matter having not been considered by the courts below the case had to be sent back for fresh consideration.

(3.) I do not find my way to agree with the learned counsel for the appellant. In a suit where a plaintiff alleges that, while he was in possession, he put the defendants in possession under a lease and seeks recovery of possession from his leasee and in the suit the alleged lease is denied by defendants, if the court finds that the lease is not proved, according to me the Article that would apply is Art.142 of the Limitation Act of 1908. This is so because, the allegation that the plaintiff gave a lease to the defendants amounts to an admission of the prior possession as well as dispossession by the defendants on the date when the defendants are said to have been put in possession, if ultimately court the finds the lease alleged to be not proved A plaintiff cannot successfully avoid the application of Art.142 of the Limitation Act to a suit by alleging a false lease and then failing to establish such lease. If Art.144 applies, the burden is on the defendants to show not only that they were in possession for 12 years or more prior to the date of suit, but that such possession was adverse to the plaintiff. On the other hand if Art.142 applies the plaintiff cannot succeed unless he is able to show his possession and in a case where he pleads a lease which is beyond 12 years of suit there is an admission that he was not in possession within 12 years of suit and if the lease set up by him is found against that may be fatal to his claim for recovery. In this case the lease having been found against by both the courts below and such lease pleaded being a lease beyond 12 years of the date of suit the plaintiff is bound to fail as the suit would be barred under Art.142 of the Limitation Act.