Madras High Court
(Mayyikaran Kalikakath) Kunhi Moidin vs Kalandarakath Pakkar Kutty Karnavan ... on 20 July, 1926
Equivalent citations: AIR1927MAD1094, AIR 1927 MADRAS 1094
JUDGMENT Devadoss, J.
1. The only question in this second appeal is whether Art. 142 or 144 applies to the facts of the case. The District Judge held that Art. 144, Limitation Act, applied and decreed the plaintiff's suit. It was recently held by Madhavan Nair, J., in Peria Jehangir Swami v. Esuf Sahib A. I. R. 1925 Mad. 834 that in a case like this the proper article to apply is 144. It is suggested by Mr. Krishna Menon that the authority of this decision is much shaken by the view held by Phillips, J., in another case reported in Kuppuswami Mudaliar v. Chokalinga Mudaliar A. I. R. 1926 Mad. 181 Art. 142, Limitation Act applies to cases where there is an allegation of possession and dispossession. But where there is no such allegation and where it is not contended that there was dispossession of the plaintiff by the defendant, it would not be proper to apply Art. 142 in the case. In this case there is evidence that the defendant's possession was only within 12 years. The plaintiff's having title to the property, possession must be deemed to have been with them till their possession was disturbed by somebody. When the defendant is not able to make out possession for 12 years it would be illegal to presume that the plaintiffs were not in possession simply because the defendant happened to be in possession for less than 12 years, for the law presumes that the person who has title has also possession. In this case there is no evidence that any third person was in possession between the time when the plaintiff ceased to be in possession and the time when the defendant came into possession. That being so, I think the District Judge was perfectly justified in relying upon the observation in Madan Mohan Singh v. Brij Behari Lal [1920] 5 Pat. L. J. 592 in support of the position that Art. 142 did not apply to the facts of the case.
2. There is no other point in the case and the second appeal is dismissed with costs.