KUPPUSWAMI MUDALIAR Vs. CHOCKALINGA MUDALIAR

JUDGEMENT

(1.) The facts of this case are stated in the Lower Appellate Court's judgment. Both the Lower Courts have dismissed the suit as being barred by limitation applying Art. 142. There were three items of property in the suit and although an appeal is preferred as regards all the three it is not now pressed as regards the third item, as admittedly the suit is barred by Order 21, Rule 63, so far as that item is concerned. As regards the other two items the appellant's contention is that Art. 144 and not Art. 142 is applicable to this case. It is not disputed that if Art. 142 is applicable, Art. 144 cannot be invoked, as it is merely a residuary Article. The argument is that Art. 142 has no application to suits for possession based on title, but that it refers only to suits based on possessory title, that is to say, that if a man has title and is in possession and is dispossessed, it is open to him to sue under Art. 142, because he was in possession, for the restoration of that possession ; but he need not do that, but may bring his suit under Art. 144 basing his claim on title as opposed to possessory title. There is nothing in the Art. itself to support this contention, nor does the point appear to have been considered in any of the cases cited before me, or decided one way or the other. The argument seems to be put forward in order to get rid of the applicability of Art. 142. As against this argument I may refer to three cases decided by the Privy Council, namely : Mohima Chunder Mozoomdar V/s. Mohesh Chunder Neoghi (1888) ILR 16 C 473 (PC) ; Mdhammad Amanulla Khan V/s. Badan Singh (1889) ILR 17 C 137 (PC) and Dharani Kanta Lahiry Gabar Ali Khan (1912) 25 MLJ 95 (PC). It is clear that all these three suits were based on title and although an argument has been attempted to show that the title set up was a mere possessory title, I do not think it can be sustained, more especially as regards the case reported in Mahammad Amanulla Khan V/s. Badan Singh (1889) ILR 17 C 137 (PC). These three cases were held to be governed by Art. 142, and consequently if we accept the contention now put forward, it necessarily involves the conclusion that these three cases have been wrongly decided. Reliance is placed on other cases decided by the Privy Council in support of the argument put forward by the appellant : Secretary of State for India V/s. Chellikani Rama Rao (1916) ILR 39 M 617 : 31 MLJ 324 (PC) ; Kuthali Mulhavar v. Kunharankutty (1921) lLR 44 M 883 : 41 MLJ 650 (PC) ; Kumar Basanta Kumar Roy V/s. The Secretary of State for India in Council (1917) 21 CWN 642 : 32 MLJ 505 (PC) and Radha Gobind Roy Saheb V/s. Inglis (1880) 7 Cal LR 364 (PC). In Secretary of State for India V/s. Chellikani Rama Rao (1916) ILR 39 M 617 : 31 MLJ 324 (PC) the plaintiff was a person who claimed by reason of adverse possession. There was no suggestion that he had ever been dispossessed and therefore it was clearly not a suit under Art. 142. In Kuthali Muthavar V/s. Kunharankutty (1921) ILR 44 M 883 :41 MLJ 650 (PC) the plaintiff established his title to the land and also acts of possession, and against that the defendant set up other acts of possession which were not held to constitute adverse possession against the plaintiff. The question of dispossession does not seem to have been considered at all and therefore I cannot consider that the case is an authority for the contention put forward. In Kumar Basanta Kumar Roy V/s. The Secretary of State for India in Council (1917) 21 CWN 642 : 32 MLJ 505 (PC) and Radha Gobind Roy Saheb v. Inglis (1880) 7 Cal LR 364 (PC) there was no question whatever of dispossession and consequently Art. 142 would not apply. in none of these cases is any reference made to the three cases first mentioned clearly because the facts are quite different. The case in Mohima Chunder Mozoomdar V/s. Mohesh Chunder Neoghi (1888) 1 LR 16 C 473 (PC) seems to me to be directly applicable here. In Vasudeo Atmaram Joshi V/s. Eknath Balkrishna Thite (1910) ILR 35 B 79 there is an obiter dictum of Heaton, J., which is approved by a single Judge of this Court in Peria Jeeyangarswami V/s. Esoof Sahib (1924) 21 LW 398. It is as follows: It was indeed urged that it is a general principle that any one suing in ejectment must prove possession within twelve years and the authorities seem to bear out that contention : but the reason for this is that possession is commonly the effective assertion of title which is relied on and the cases accordingly deal with that particular kind of assertion of title. But it is not the only one ; there is another which in some cases is equally good and that is an assertion of title made in Court and established by a decree... (such title) is good against them also and entitles to possession whether the title-claimant has or has not been in possession within twelve years.

(2.) This exception to the general rule does not appear to be applicable to the facts of the present case. We find, moreover, another remark in the same judgment: I do not think that Art. 142 has any application to claims which neither in terms nor in substance are claims to possession, made necessary by reason of dispossession or discontinuance of possession.

(3.) This judgment of Heaton, J. has given rise to the argument that in the present suit there was no dispossession of the" plaintiff. It is not disputed that there was dispossession of his predecessor-in-title, nor is it disputed that plaintiff can have no better rights than his vendor. If there had been no dispossession by the defendant, that is to say, if defendant had not come into possession by dispossessing the plaintiff's vendor or some other person, the plaintiff would have no cause of action against the defendant, for defendant would not be in possession if he had never dispossessed anybody, for there is no suggestion that defendant merely occupied the property when vacant. It is admitted in the plaint that he did come into unjust possession by dispossessing Vythialingam, plaintiff's vendor, and in the plaint itself the cause of action is said to have arisen on the 11 of July, 1905, the date on which the defendant unjustly took possession in pursuance of an order of Court. The suit is clearly based on this dispossession and the Article applicable is Art. 142. That being so, the burden is on the plaintiff to prove that he was in possession within twelve years of the suit. Both the Lower, Courts have found that he has not proved this, and this finding is not attacked here.