KALLU Vs. MTJAYANTI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the respondent for possession of a house. The respondent, Mt. Jayanti, is the widow of one Bhagwan Singh, who admittedly owned and occupied the house till his death. He died about 21 years before the institution of the suit, leaving the plaintiff, his widow, and Mt. Bhagwan Dei, his mother. Bhagwan Dei died in 1931, and the present suit was instituted in December 1932. The plaintiff claimed the house as the heir of her husband. The defendants are the collaterals of Bhagwan Singh.

(2.) The only defence, which need be taken notice of at this stage, is that the plaintiff became unchaste after the death of Bhagwan Singh and left the house which has since been in their adverse possession. The plaintiff had alleged in the plaint that she was dispossessed of the house on the 13 day after the death of her mother-in-law.

(3.) The trial Court framed two issues. One was whether the plaintiff was in possession within 12 years. The other was whether the defendants were in adverse possession for more than 121 years before the suit. It is quite clear that up to the time the Court framed issues it had not made up its mind as to whether Art. 142 or 144, Limitation Act, should he applied. Both parties led evidence, the plaintiff attempting to prove her allegation and the defendants attempting to prove theirs, namely, that they were in adverse possession of the house for more than 12 years before the institution of the suit. There is no doubt that if the defendants were in possession of the house for more than 12 years, their possession was prima facie adverse. The trial Court dealt with both the issues together and expressed the opinion that Art. 144 was applicable. After discussing the evidence it arrived at the conclusion that the plaintiff was in possession of the house for sometime after her husband's death, that she left the house and began to live in other houses which she had rented, but that her mother-in-law continued to reside in the house. The witnesses examined by the defendants in proof of their possession were positively disbelieved. The case having been approached from the point of view already stated, the trial Court held that the defendants failed to establish adverse possession for more than 12 years. On that finding the plaintiff's suit was decreed. In appeal the lower appellate Court also applied Art. 144 and held that the defendants failed to establish the adverse possession set up by them.