SWAMIRAO SHRINIWAS PARVATI Vs. BHIMABAI PADAPPA DESAI

JUDGEMENT

(1.) The plaintiff had to file this suit to obtain a declaration that the suit house was of the ownership of the 2nd defendant, and liable to attachment and sale in execution of the decree which the plaintiff had obtained against him. The 1st defendant contended that the house did not belong to the 2nd defendant but was hers and was in her Vahivat through tenants. The 1st issue raised in the trial Court wasDoes plaintiff show that the whole house belongs to his judgment-debtor defendant No. 2? On that issue the Court found that half the house belonged to the judgment-debtor. The next issue wasWas defendant No. 2 in possession of it within twelve years next before suit (The Court found that issue in the negative. Accordingly it dismissed the suit with costs with regard to house B. It appears to me that owing.

(2.) I cannot agree with that view at all. Apparently it was not suggested, so far as I can see, from the record, that defendant 1 claimed to be in possession of the house through Mallappa as her tenant and therefore, her possession was adverse to the knowledge of the 2nd defendant, and therefore, the period for instituting a suit against her by the 2nd defendant had commenced to run. That was not proved by the evidence Nor does it appear that Mallappa came forward to say that he held the house adversely to the 2nd defendant. This passage in the judgment especially shows how the mind of the trial Judge was affected by the raising of issue 2, which was a wrong issue to be raised in the case. It is quite. true that the plaintiff must show that the property which is attached is the judgment-debtor s, and that the judgment-debtor has a subsisting interest in the property. He did show that the title was in the judgment-debtor, defendant No. 2. The title will remain so until it can be shown that somebody el so has got a better title. In the appellate Court the Judge said : In the second suit the lower Court has hold that Mahaningappa and defendant No. 2, Adiveppa, were owners of the house but have been out of possession far more than twelve year- end that their ownership is lost by adverse possession on the part of Mallappa. It is argued that Mallappa may be the tenant of Mahaningappa and Adiveppa. There is nothing, however, in support of this contention and Mallappa himself says tint he is the tenant of the Desai. So the presumption is that Adiveppa has lost his title to the house by adverse possession of Mallappa.

(3.) It is not a question at all of presumption. Either defendant No. 1 could establish her right to remain in possession of the house by adverse possession for twelve years against the 2nd defendant, or else it might have been proved that Mallappa had acquired a title. Rut there is certainly no presumption that Mallappa could have acquired a title, and Mallappa himself has not come forward to claim that he acquired a title.