KUNDA CHENCHURAMA REDDI Vs. CHINTALAPALLI ADEMMA

JUDGEMENT

(1.) THE subject -matter of the suit out of which this second appeal arises is an extent of 40 cents of the southern 3 acres, 75 cents, belonging to the plaintiff in S. No. 240 of the Pottempavdu village of the total extent of 4 acres, 75 cents. Alleging trespass on the 40 cents somewhere about 1938 on the part of the defendant, the owner of S. No. 241 lying to the south of S. No. 240, the plaintiff sued to recover possession of the 40 cents and mesne profits thereon. According to the plaintiff, it became possible for the defendant to trespass, because he happened to have become the lessee of the plaintiff's property under Ex. D -2 for a term of seven years and could abuse his possession as such lessee so as to annex a portion of the leasehold to his own property. The plaintiff alleged also that out of 3 acres, 75 cents, an extent of 3 acres, 60 cents, was mentioned in Ex. D -2 as the subject -matter of the demise on account of the fraud which the defendant played. In answer to the action the defendant put the plaintiff to proof of her title and of her possession within 12 years prior to suit and denied the trespass alleged. The learned District Munsiff of Nellore who tried the suit dismissed it, giving effect to the pleas raised by the defendant. On appeal the learned Subordinate Judge of Nellore decreed the suit except with reference to an extent of 15 cents. This extent of 15 cents had been decreed to this very plaintiff against this very defendant in an earlier litigation on 25th August, 1930. But the decree became inexecutable by time -bar, and the defendant remained in possession of that extent all along. The learned Subordinate Judge therefore held that the plaintiff was disentitled to relief in respect of that extent, and that in respect of the remainder there was a clear admission of the plaintiff's title and possession in Ex. D -2 entitling her to a decree. I may add that the learned Subordinate Judge did not displace the finding recorded by the learned District Munsiff against the case of trespass in 1938 pleaded by the plaintiff.

(2.) AGAINST the decree of the learned Subordinate Judge the defendant has filed this second appeal. There is no question now with reference to the 15 cents. As regards the remaining 25 cents the appellant's grievance is, firstly, that undue effect has been given by the learned Subordinate Judge to the recitals of Ex. D -2 about the plaintiff's title and possession, and secondly, that irrespective of the defendant's proof or failure of proof of his own adverse possession the plaintiff was bound to fail for want of proof of her possession within 12 years prior to suit under Article 142 of the Limitation Act, even assuming the trespass of 1938 alleged by the plaintiff to be true.

(3.) THE recitals of Ex. D -2 being therefore false, I am of opinion with reference to the first contention of the appellant that they were wrongly used by the learned Subordinate Judge against the defendant as negativing his adverse possession Being false, they cannot, I think, be used whether for negativing adverse possession of the defendant or for finding the plaintiff's possession within the statutory period. With reference to the second contention of the appellant, in order to escape the bar of Article 142 of the Indian Limitation Act which would prima facie cover a case like the present under the Full Bench ruling of this Court reported in Official Receiver, East Godavari v. : AIR1940Mad798 , Mr. Umamaheswaram, the learned advocate for the respondent, attempted many lines of argument before me. He contended in the first instance, rather boldly that the plaintiff must be taken to have proved her possession within 12 years prior to suit, because the possession of the trustees was in law hers. That, in my opinion, is absolutely and obviously impossible. The trustees were in possession in their own right and adversely to the plaintiff and not. on behalf of the plaintiff, so much so that in fact the plaintiff had to file her suit, O.S. No. 156 of 1940, in order to evict them from the property in question.