SUBAPPA SHENKAREPPA Vs. VENKAPPA GOLAPPA

JUDGEMENT

(1.) The plaintiff brought this suit to recover certain land from the possession of defendant No. 1, who, he alleged, was his tenant. He appears to have joined defendants 2 and 3, because, in collusion, as he says, with defendant No. 1, the name of defendant No. 2 had been entered as owner of this land, or part of it, in the Record of Rights.

(2.) The learned Judge of first appeal has broken up the land into two parts, in respect of one of which he has decreed the plaintiff s claim in full, holding that that land was in the possession of defendant No. 1 as tenant of the plaintiff. In respect of the other portion of the land in suit, the learned Judge of first appeal appears to have come to the conclusion that that land was de facto in possession of the defendants, and therefore, that the plaintiff s suit fell under Article 142 of the second schedule to the Limitation Act. Accordingly, he held that the plaintiff had been unable to prove possession of this portion of the plaint land within twelve years of the suit as required by that Article, and so in effect dismissed his suit as against these defendants in respect of the land so found in their possession.

(3.) It has been contended here that the plaintiff s suit against defendants Nos. 2 and 3 really fell under Article 144, and not under Article 142. The written statement of these defendants certainly appears to set up a claim by adverse possession, as well as on a title which the Courts below found was not proved. Having regard, however, to the fact that in respect of all the land the plaintiff has certainly alleged possession, and still alleges possession, we think that as soon as any part of that land is found to be de facto in the possession of other persons against whom a suit is brought, the case must necessarily fall under Article 142, and not under Article 144. It is quite clear from the wording of those Articles that every suit for possession of immovable property in which the plaintiff alleges that he has had possession must fall under Article 142. It is only where the plaintiff does not allege that he has ever been in possession that the case will fall under Article 144. In the former class of cases the plaintiff is bound to show that the dispossession or discontinuance of possession which gives rise to the starting point of limitation was within twelve years of the date of the suit. The learned Judge below has found, and the finding is a finding of fact, that the plaintiff has not proved his possession within twelve years of suit of the land in the present actual possession of the defendants 2 and 3. Indeed the learned Judge has gone much further, and upon the evidence appears to have found that these defendants have satisfactorily proved adverse possession for more than twelve years before suit. It would not, therefore, be a matter of much importance now under which Article of the Limitation Act this suit falls to be classed. Under either Article we are bound by the findings of fact of the learned Judge of first appeal, and those findings sufficiently dispose of the plaintiff s, case. We must, therefore, dismiss this appeal with all costs.