OFFICIAL RECEIVER OF EAST GODAVARI Vs. CHAVA GOVINDARAJU

JUDGEMENT

(1.) The appellant is the Official Receiver of East Godavari and he has filed this appeal as the representative of the estate of one Adusumilli Venkatasubbarayudu, who was adjudicated an insolvent during the pendency of the suit out of which this appeal arises. The insolvent was the plaintiff in the suit. On the 29 November, 1911, the second respondent and his sons mortgaged certain land belonging to them and in 1922 the mortgagees filed a suit in the Court of the District Judge of Rajahmundry to enforce the mortgage. They obtained a decree which they assigned to the plaintiff, who caused the land to be put up for sale in execution proceedings. The plaintiff bought the land at the Court auction and in due course obtained a sale certificate. When he went to take possession of the property he was obstructed by the first respondent, who claimed it as his ancestral property. Thereupon the plaintiff applied to the Court for an order under Order 21, Rule 98 of the Civil P. C.. His application was dismissed and consequently he filed in the Court of the District Munsif, Rajahmundry, a suit for a decree declaring his title to the property and for the ejectment of the first respondent therefrom. In his plaint he averred that in 1909 the second respondent, on being appointed a village munsif, entrusted the property to the first respondent, his nephew, who was to manage it for him. With the dishonest idea of defeating the mortgage the second respondent had, it was said, instigated the first respondent to claim the property as his own. In addition to claiming the land as his ancestral property the first respondent averred that he had title to it by adverse possession. The District Munsif found for the plaintiff on all the issues and consequently decreed the suit. The first respondent then appealed to the Court of the Subordinate Judge of Rajahmundry. The Subordinate Judge held that the land was not the ancestral property of the first respondent, but belonged to the second respondent and his family. He disagreed with the District Munsif, however, on the question whether the land had been entrusted to the first respondent. In his opinion this had not been proved, but without considering the question whether the first respondent had been in adverse possession for twelve years he allowed the appeal on the ground that possession had been with the first respondent, since that date. The question which the court is called upon to decide is whether Art. 142 or Article 144 of the Limitation Act applies to this case. The appellant contends that Article 144 applies. The, first respondent would have it that the proper article is Article 142. That the first respondent has been in possession since 1909 is admitted and it is conceded by both sides that if Art. 142 applies the appeal must fail. It is also conceded that if Art. 144 applies the suit must be remanded to the Subordinate Judge to consider whether the evidence justifies the first respondent's contention that he has obtained a title by adverse possession.

(2.) Art. 142 prescribes a period of limitation of twelve years for a suit for possession of immovable property when the plaintiff, while in possession of the property has been dispossessed or has discontinued the possession. The period of twelve years runs from the date of dispossession or discontinuance. Art. 144 prescribes the same period of limitation for a suit "for possession of immovable property or any interest therein not hereby otherwise specially provided for". The period commences when the possession of the defendant becomes adverse to the plaintiff. Articles 134, 134-B, 135, 136, 137, 138, 139, 140, 141 and 143 also deal with suits for possession of immovable property. Art. 144 is a residuary article and therefore can only be applied if a suit does not fall within any of the earlier articles. There has been much discussion in the Courts of India with regard to the application of Articles 142 and 144. If a suit falls within Articles 142 the plaintiff must show that he has been in possession within twelve years of the suit. When Art. 144 applies the burden of proving adverse possession for this period is upon the defendant.

(3.) A discussion of the reported cases relating to Articles 142 and 144 would be a most formidable task and in my opinion it is not necessary to undertake it. I consider that the Privy Council has indicated the application of these articles in Mohima Chunder Mozoomdar V/s. Mohesh Chunder Neoghi (1888) L.R. 16 I.A. 23 : I.L.R. 16 Cal. 473 (P.C.), Muhammad Amanulla Khan V/s. Badan Singh (1889) L.R. 16 I.A. 148 : I.L.R. 17 Cal. 137 (P.C.) and Dharani Kanta Lahiri V/s. Garbar Ali Khan (1912) 25 M.L.J. 95 (P.C.). In Mohima Chunder Mosoomdar V/s. Mohesh Chunder Neoghi (1888) L.R. 16 I.A. 23 : I.L.R. 16 Cal. 473 (P.C.), the plaintiffs had proved that formerly they were the proprietors of the land to which they alleged title, and from which they claimed to oust the defendants. They had, however, been dispossessed, or their possession Had been discontinued,, some years before the suit was brought by them and the land was occupied by the defendants, who denied their title. The Judicial Committee held that in these circumstances the burden was on the claimants to prove their possession at some time within the twelve years next preceding the suit. It was not sufficient for them to show an anterior title without proof of their possession within twelve years to shift the burden on the defendants of showing that they were entitled to remain in possession. In the judgment under appeal the Subordinate Judge who tried the case observed: When I showed above that the plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to retain possession of these lands.