KALLAN Vs. MOHAMMAD NABI KHAN

JUDGEMENT

(1.) This is a second appeal by defendants 1, 3, and 4 against a decree of the lower appellate Court granting the plaintiff possession of a certain house. The suit of the plaintiff was brought on 31 July 1929 on a sale-deed dated 23 May 1929, by defendant 2, Mst. Ahmadi Begam, of the house in question along with other property to the plaintiff. The plaint set forth that defendant 1, Kallan, was a tenant of the vendor Mst. Ahmadi Begam paying rent to her and liable to be ejected at any time. The plaintiff issued a notice on 6 June 1929 to defendant 1 to vacate the house and defendant 1 sent a reply denying that he was a tenant and alleging that he was the owner. The written statement" of defendant 1 was that he was the absolute owner of the house and had been in adverse proprietary possession for more than 17 years and that Mst. Ahmadi Begam had never been in possession and had never been the owner of the house. Subsequently, the parties made statements under Order 10, Rule 1 and Kalian slated that he did not know who was the owner of the house, that his father-in-law Hamid Ullah used to reside in the house and had no issue and died 20 or 22 years ago. The statement that the father-in-law had no issue apparently means that the father-in-Iaw had no issue other than the wife Kalian. Accordingly amendments of the plaint were allowed on 30 January 1930 and 7 February 1930 and Mst. Shahzadi the daughter of Hamid Ullah and wife of Kalian, was added as defendant 5 and their two sons as defendants 3 and 4. The Court of first instance framed issues as follows: (1) Is plaintiff the owner of the house in suit? (2) Have defendants acquired any right to it by adverse possession. (3) To what sum, if any, is plaintiff entitled as mesne profit? (4) Is plaintiff or his predecessor-in- interest in possession within 12 years, and if not, is the suit barred by time?

(2.) The Court of first instance dismissed the suit of the plaintiff on the ground that the plaintiff had to prove that he was in possession within 12 years before the institution of the suit and that plaintiff had failed to prove this. It was also found by this Court: To me it appears that Ahmadi Begam finding that she had lost her claim to the house by being kept out of possession for over 12 years sold the house to plaintiff with a view that plaintiff might try his chance by a law suit.

(3.) The plaintiff appealed and the lower appellate Court has decreed the suit. The lower appellate Court held following a ruling in Kanhaiya Lal V/s. Girwar , that Article 144 applied to this suit as the plaintiff sues for possession of an immovable property on the basis of his title and in such a suit if the plaintiff proves his title, he is entitled to a decree, unless the defendant succeeds in establishing his adverse possession for a period of more than 12 years and that Art. 142 is restricted to cases in which the relief for possession sought by the plaintiff is based on what may be styled as possessory title; and the burden of proving in such cases that the plaintiff was in possession and was dispossessed within 12 years from the date of the suit lies on the plaintiff.