Kerala High Court
Pappy Amma vs Prabhakaran Nair on 16 March, 1971
Equivalent citations: AIR1972KER1, AIR 1972 KERALA 1, 1971 KER LT 431
Author: K.K. Mathew
Bench: K.K. Mathew
JUDGMENT Cases Referred: Marimuthu Goundan v. Thambi, 1960 Ker LJ 1304; Kalliyani v. Kaliani, 1969 Ker LT 362; Gouri Amma v. Kochali Amma, 1970 Ker LT 111; Qadir Bux v. Ramchand, AIR 1970 All 289; P. Lakshmi Reddi v. L. Lakshmi Beddi, AIR 1957 SC 314; Smt. Radharani v. Smt. Kanaklata, AIR 1960 Cal 533; Mt Murthi v. Moham-mad Mir Khan. AIR 1965 SC 875 Disposition: Appeal dismissed JUDGMENT Mathew, J.
1. This is an appeal from the judgment and decree of a learned single Judge allowing a second appeal preferred by the plaintiff from the decree of the Subordinate Judge's Court, Irinjalakkuda, reversing the decree passed by the Munsif in a suit for recovery of possession of the plaint property. The plaint property was purchased by the plaintiff in 1101 from the 2nd defendant and was in his possession and enjoyment. The property lying immediately to the east of the plaint property also belonged to the plaintiff. That property was demised to the 1st defendant under a registered lease deed in the year 1109 (Ext. P2). The plaintiff filed O. S. No. 674 of 1951 in the Munsif's Court, Irinjalakkuda for a declaration of his possession of that property and for an in-junction restraining the 1st defendant from entering upon it alleging that Ext. P2 lease deed had not come into effect. The 1st defendant was appointed receiver on 5-12-1951 of the plaint property in that case which also included the plaint property in this suit. The plaintiff sought, by Ext. D4 application dated 14-5-1952, an amendment of the plaint by deleting the plaint item here from the plaint schedule in that case. That application was allowed on 13-6-1952. Thereafter the plaintiff applied for termination of the receivership of the 1st defendant of the plaint property; that was not allowed by the court. That suit itself was dismissed. The appeal and second appeal preferred from the decree were also dismissed. The present suit was filed on 14-10-1957, corresponding to 28-2-1133 M. E., on the allegation, that the plaintiff was in possession of the plaint property after its purchase in 1101 under Ext. P1, that the 1st defendant got possession of it under the order appointing her as receiver in O. S. No. 674/1951. and that her continuance in possession was unauthorised and prayed for recovery of possession of the property.
2. The 1st defendant contended that she was holding the plaint property under an oral lease granted by the plaintiff in 1101, that in 1109 a registered lease of the plaint property as well as of the eastern property was executed by her as evidenced by Ext. P2 and that she was in possession of the property, at any rate, from 1109. She further contended that even if the plaint property was not included in Ext. P2 lease, she had prescribed for a leasehold interest in the property as she was in possession of the property with the animus to possess it as a lessee.
3. The trial court found against the oral lease set up by the 1st defendant. It also found that the plaint property was not included in Ext. P2 lease deed, that the plaintiff was in possession of the plaint property before the 1st defendant was appointed receiver in O. S. No: 674/1951; and decreed the suit. The 1st defendant preferred an appeal to the Subordinate Judge's court from the decree. The appellate court reversed the decree holding that even assuming that the plaint property was not included in Ext. P2 lease, both parties were under the impression that the plaint property was included in Ext. P2 lease deed, and as the 1st defendant was in possession of the property with the animus to possess it as lessee, she has prescribed for title as lessee to the property. So the appeal was allowed and the suit dismissed. It was against this decree that the second appeal was preferred. The learned Judge found that the plaint property was not included in the lease deed Ext. P2 and that the plaintiff was in possession of the property before the 1st defendant was appointed receiver in O. S. No. 674/ 1951 and that, at any rate, in view of the decision of this court in Marimuthu Goundan v. Thambi, 1960 Ker LJ 1304 holding that when a defendant admits in the written statement that he is in possession as a lessee, the plaintiff has no burden to prove possession within 12 years of the suit as the 1st defendant had admitted the title and the constructive possession of the plaintiff by claiming possession of the property only as lessee thereof and allowed the appeal and decreed the suit. It was against this decree that the present appeal has been preferred.
When the appeal came up for hearing, a division bench of this court thought that there was some conflict between the decision in 1960 Ker LJ 1304 and that in Kalliyani v. Kaliani, 1969 Ker LT 362 where it was held that in order to relieve the plaintiff of the burden of proving possession within 12 years of the suit the lease set up by the defendant must have originated within a period of 12 years from the date of the suit, and that the decision in 1969 Ker LT 362 may require reconsideration. And that is how the case has come before us.
4. The substantial allegations in the plaint determine the question whether the suit is one for recovery of possession on the basis that the plaintiff, while in possession, was dispossessed or has discontinued possession and, therefore Article 142 of the Limitation Act, 1908, will apply. This court has recently reviewed the relevant cases on the point in Gouri Amma v. Kochali Amma, 1970 Ker LT 111 and has come to the conclusion that the allegations in the plaint alone need be looked into to determine the question whether Article 142 would be attracted to a suit. We respectfully agree with this conclusion of the learned Judges in that decision.
5. The plaint here proceeded on the basis that the 1st defendant got pos-session of the property only when she was appointed receiver in O. S. No. 674/ 1951. Even after the deletion of the plaint item from that suit on the application of the plaintiff, the receivership of the 1st defendant of the plaint property was not terminated. Whether It was proper for the court to have continued the receivership of the 1st defendant in respect of a property which ceased to be the subject-matter of the suit is not a matter that arises for consideration here. The only relevant question for consideration is whether the allegation that the 1st defendant got possession of the plaint property under the cover of the order appointing her as received in O. S. No. 674/1951 would amount to an allegation of dispossession of the plaintiff within the meaning of Article 142. In 1970 Ker LT 111 a division bench of this court has observed:
"The term 'dispossession' applies when a person comes in and drives out others from the possession. It imports ouster, a driving out of possession against the will of the person in actual possession." In Qadir Bux v. Ramchand, AIR 1970 All 289 (FB) the court said that 'dispossession' in Article 142 means entering into possession of property by one to oust the person in possession of it and that imports the driving out of the person in possession against his will.
"Dispossession is the actual ouster of the person having possession by another person. There can be no dispossession except where it has been brought about by positive or unequivocal acts, on the part of the person dispossessing, which can be referred only to the intention of obtaining exclusive control over the property. It implies the coming in of a person and his driving out another from possession. It imports the idea of ouster, i.e., a driving out from possession against the will of the person." (See U. N. Mitra's Law of Limitation and Prescription, Vol. II, 6th Edn. p. 1006). Now. if this is the meaning of the word 'dispossession' in Article 142. was there a dispossession of the plaintiff when it was alleged that the 1st defendant got into possession of the property under the cover of the order appointing her as receiver in O. S. 674/1951? In P. Lakshmi Reddi v. L. Lakshmi Beddi, AIR 1957 SC 314 Jagannadhadas, J., speaking for the court, quoted with approval the following passage from Woodroffe on the Law Relating to Receivers:
"The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto." In Smt. Radharani v. Smt. Kanaklata, AIR 1960 Cal 533 the Court said that when a receiver is appointed in a suit, the possession of the property passes to the custody of the court and the court is deemed to be in possession.
6. The court is not presumed to do any wrong to any of the parties to a suit by taking possession of a property by a receiver, its agent. 'Dispossession' in Article 142 implies taking possession without the consent of the person in possession and is a wrong to the person in possession. It furnishes a cause of action to the person who was in possession to recover possession from the person dispossessing. On the other hand, as already stated, the court, when it takes possession through its agent, does not commit any wrong to any of the parties to the suit, and its action in taking possession can never furnish a cause of action, to any of the parties to file a suit to recover possession from the receiver. The property simply passes into custodia legis.
It is significant to note that when the court dismissed O. S. No. 674/1951, it "did not determine the title of the 1st defendant to be in possession of the plaint property for the reason that when the suit was dismissed the plaint property had been deleted from the plaint schedule in O. S. No. 674/1951. There was no allegation of discontinuance of possession in the plaint as there was no case of any abandonment of possession by the plaintiff followed by possession of the 1st defendant. If this is so, we must hold that there was no allegation of dispossession, or discontinuance of possession in the plaint and that Article 142 of the Limitation Act 1908 will have no application.
7. Counsel for the appellant did not seriously urge that the plaint property was included in Ext. P2 in view of the definite finding of the learned Munsif as well as of the learned single Judge that it was not so included. The learned Subordinate Judge has not recorded a specific finding on this point. We have no hesitation in accepting the finding of the learned single Judge that the plaint property was not included in Ext- P2. But counsel urged that the 1st defendant was asserting title to a leasehold interest in the plaint property from 1109 onwards, the date of Ext: P2 lease deed, on the basis that the property was also included in it, and therefore, she had acquired by prescription a leasehold interest in the property, even if it be assumed that there was no actual lease of the property in her favour. The trial court found that the plaintiff was in possession till the 1st defendant was appointed receiver in O. S. No. 674/1951. The learned Subordinate Judge, as we have already indicated, was of the view that both the plaintiff and the 1st defendant were under the impression that the plaint property was included in Ext. P2, and that it was in her possession and so she had prescribed for leasehold interest in the property. The learned single Judge agreed with the Munsif and found that the plaintiff had possession till the 1st defendant got possession under the order appointing her as receiver.
We are not satisfied that there is any reliable evidence to show that the 1st defendant was in possession of the property before she was appointed receiver in O. S. No. 674/1951. The learned Munsif has gone into the question of the possession of the property and has considered the oral and documentary evidence in detail and his conclusion was accepted by the learned single Judge. When it was found that the 1st defendant's case of oral lease of the plaint property in 1101 cannot stand and that Ext. P2 does not include the plaint property, it is rather difficult to believe her case that she was in possession before she was appointed receiver. Her case of possession must stand or fall with the truth or otherwise of her case of the oral lease of the property in 1101 or the registered lease in 1109. She had no case that she was in possession otherwise than as a lessee. Quite apart from that, the fact that the plaintiff is her brother and that they were residing together till 1123 in the same house would indicate that the acts of possession alleged by her were acts done by her in her capacity as agent of the plaintiff. We have therefore no hesitation to accept the finding of the Munsif which was concurred in by the learned single Judge, that the plaintiff was in possession till the 1st defendant was appointed receiver in O. S. No. 674/1951.
8. As indicated already, in 1960 Ker LJ 1304 the court said that if a defendant admits in the written statement that he is in possession as lessee of the plaintiff, the plaintiff has no burden to prove subsisting title in a suit for recovery of possession even though the lease set up by the defendant has been ultimately found against. In 1969 Ker LT 362 the court held that, it is only when the defendant admits that he has taken the lease from the plaintiff within a period of 12 years from the date of the suit, that an admission of subsisting title of the plaintiff can be inferred, which would exonerate the plaintiff from the burden of proving it and that an admission by the defendant that he is holding the property under a lease by the plaintiff more than 12 years before the date of the suit would not involve an admission of subsisting title of the plaintiff, so as to relieve him of the burden. Whether an admission that a defendant has taken a lease from the plaintiff within a period of 12 years of the date of the suit would per se amount to an admission of the possession of the plaintiff within a period of 12 years of the date of the suit is a matter on which we do not propose to express any final opinion. It might be that the property leased was not in the possession of the plaintiff at the time of the lease, but in the possession of a trespasser, and the lessee may take posses-ion from the trespasser by a suit or otherwise. In such a case it would be difficult to attribute possession to the plaintiff on the date of the lease. Of course, if the admission was that the plaintiff leased the property of which he was in possession, it would imply an admission of subsisting title In the plaintiff.
The learned single Judge relied on 1960 Ker LJ 1304 and said that since the 1st defendant claimed in the written statement to be a lessee of the plaintiff, it was unnecessary for the plaintiff to have proved a subsisting title. Whether in a ease where the lease set up in the written statement is not proved at the trial, the admission in the written statement can be taken as an admission of a subsisting title so as to relieve the plaintiff of the burden of proof is a matter on which also we do not propose to express any opinion. If the assumption in 1960 Ker LJ 1304 that an admission of a subsisting lease in the written statement would relieve the plaintiff of the burden of proving subsisting title is correct, though the lease set up is found against at the trial, then, there might be difficulty in appreciating the distinction made in 1969 Ker LT 362 between a case where the lease set up is one which originated within 12 years of the date of the suit and one which originated beyond 12 years. In other words, the question is which is the admission relied on to relieve the plaintiff from the burden of proving subsisting title. If the admission relied on for the purpose is the admission in the written statement that the defendant was a lessee on the date of the suit, and has therefore admitted that; the plaintiff was in constructive possession on the date of the institution of the suit, then perhaps there might be no logic in saying that the lease must have originated within 12 years of the suit.
Apparently 1960 Ker LJ 1304 proceeded on the basis of the admission in the written statement that the defendant therein was in possession as a lessee on the date of the suit, and not on the basis that the lease set up was one granted to the, defendant within 12 years of the suit. Even if the lease set up was one granted before 12 years of the date of the suit, if the allegation in the written statement is that the defendant continued in possession under the lease when the suit was filed, it might be difficult to say that there was no admission on the part of the defendant that the plaintiff was not in possession within a period of 12 years of the date of the suit. However, we do not think it necessary for disposing of this case to make any final pronouncement on these questions, as we, have already accepted the finding of the learn-ed single - Judge that the plaintiff was in possession till the 1st defendant was appointed receiver in 1952.
9. As already indicated, the 1st defendant had set up an alternative case in the written statement that even if she was hot a lessee, she was in possession with the animus of a lessee and, therefore, she prescribed for leasehold interest in the property. Though the 1st defendant has not been able to prove that she had been" in possession for the requisite period with the animus, there is proof that she asserted within 12 years of the date of the suit that she was a lessee of the plaintiff. That, we think, implies an admission that the 1st defendant held the property as a lessee thereby admitting the possession of the plaintiff within a period of 12 years. In such a case, whether the actual lease set up by her is or is not proved at the trial is quite immaterial. Nor is the fact that she has failed to prove that she was in possession for the requisite period with the necessary animus material, for what is relied on as an admission is her assertion that she was a de facto lessee within a period of 12 years.
10. As we have said, there was no allegation of dispossession or discontinuance of possession in the plaint. Nor had the 1st defendant a case of dispossession of the plaintiff or discontinuance of possession by the plaintiff. In such a case, the principle laid down by the Supreme Court in Mt Murthi v. Moham-mad Mir Khan. AIR 1965 SC 875 will apply. Their Lordships said.
"It seems to us that if a defendant not only admits title pi plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant's plea, and for purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Article 142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession."
In these circumstances, we think the learned single Judge was right in allowing the second appeal and decreeing the suit. We dismiss the appeal with costs.