Kuppuswami Mudaliar vs Chockalinga Mudaliar

Phillips, J.—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 Article 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 Article 144 and not Article 142 is applicable to this case. It is not disputed that if

Article 142 is applicable, Article 144 cannot be invoked, as it is merely a residuary Article. The argument is that Article 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 Article 142, because he was in possession, for the restoration of that possession ; but he need

not do that, but may bring his suit under Article 144 basing his claim on title as opposed to possessory title. There is nothing in the Article 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 Article 142. As against this argument I may refer to three cases

decided by the Privy Council, namely : Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi ILR (1888) C 473 ; Mdhammad Amanulla

Khan v. Badan Singh ILR (1889) C 137 and Dharani Kanta Lahiry Gabar Ali Khan (1912) 25 MLJ 95. 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. Badan Singh ILR (1889) C 137 These three cases were

held to be governed by Article 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. Chellikani Rama Rao ILR (1916) M 617 ; Kuthali Mulhavar v. Kunharankutty (1921) 41 MLJ 650;

Kumar Basanta Kumar Roy v. The Secretary of State for India in Council 21 CWN 642 and Radha Gobind Roy Saheb v. Inglis (1880) 7 Cal LR

In Secretary of State for India v. Chellikani Rama Rao ILR (1916) M 617 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 Article 142. In Kuthali

Muthavar v. Kunharankutty ILR (1921) M 883 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. The Secretary of State for India in Council 21 CWN 642 and Radha Gobind Roy Saheb v. Inglis (1880) 7 Cal 364 there

was no question whatever of dispossession and consequently Article 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. Mohesh Chunder Neoghi I

LR 16 (1888) C 473 seems to me to be directly applicable here. In Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite ILR (1910) B 79 there is

an obiter dictum of Heaton, J., which is approved by a single Judge of this Court in Peria Jeeyangarswami v. 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.

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 Article 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.

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 11th 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 Article 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.

On that finding this second appeal must fail and is dismissed with costs.