The importance of proving possession within 12 years of the suit in cases of recovery of possession and the requirement of honest belief in being a tenant for the application of S.7 of Act 1 of 1964.

1. If the decision of this court in Kalliani v. Kalliyani 1969 KLT. 362 it correct, I think the decrees of the courts below call for interference. That is because the main controversy is whether the suit for recovery of possession I am assuming so and I will, in due course, point out that I treat this as a suit for recovery of possession is barred by limitation under Art.142 of the Indian Limitation Act, 1908 (this is the Act applicable to this case). The plaintiffs contend that they were in possession of the suit property and the defendant was in occupation of a building therein under a rental arrangement which building was destroyed and therefore the tenancy with regard to the building has terminated. They seek recovery of possession of the property apparently on the basis that defendant trespassed therein. Defendant sets up a tenancy with regard to the suit property in favour of his father that having commenced, according to him, about 40 years earlier. On the evidence in the case the plea of tenancy set up by the, defendant has been found to be not proved. Defendant is found to be a person who was originally allowed to occupy the building in the property as a tenant but it is also found that on the date of suit he was in possession not only of the building but the property also. On these facts, the court below, relying on the decision of this Court in Marimuthu Goundan v. Thambi 1960 KLJ.1304 held that the plea by the defendant of a lease which be was unable to prove is sufficient to entitle the plaintiff to a decree. It is the correctness of this that is under challenge in the appeal by the defendant in the suit.

2. The decision in Marimuthu Goundan v. Thambi 1960 KLJ.1304 was referred to by this Court in Kalliani v. Kalliyani 1969 KLT. 362 and that was distinguished. This Court said:

"Where the plaintiff alleges tenancy and the defendant admits the same or where the plaintiff or defendant alleges tenancy and such tenancy is proved, the suit may, in essence, be one between landlord and tenant, and in such a case the plaintiff is not called on to prove possession within 12 years of suit be would nevertheless have to prove thai the tenancy has been duly determined so as to entitle him to present possession; and in view of Art.139 that this determination was within 12 years before the suit. But where one of the parties alleges a tenancy but it is not sustained in evidence, the principle to be applied is not the one applicable to a suit between landlord and tenant in the matter of limitation. No doubt, the admission by the defendant in such a suit that he is a tenant may amount to an admission that when the tenancy was created the landlord was in possession, so that he could put the tenant in possession. If the tenancy alleged happens to be one which commenced within 12 years of the suit, plaintiff may succeed on the strength of title taking the admission of the defendant as proving the possession of the plaintiff within 12 years. We think this principle cannot be extended to cases where the admission implied in a plea of tenancy relates to a period of more than 12 years prior to the date of suit."

This decision has been noticed by a Full Bench of this Court in Pappy Amma v. Prabhakaran Nair 1971 KLT. 431 and on more than one occasion it has been urged before me by counsel that the decision of the Division Bench in Kalliani v. Kalliyani 1969 KLT. 362 has been overruled by the Full Bench and it is for that reason that I felt I should advert to this in some detail here.

3. Of course, some decisions of the courts in India seem to state a principle that in a suit for eviction if the defendant sets up a plea of lease he would thereby be admitting the title of the plaintiff and though the plaintiff would normally be called upon to prove his possession within 12 years of the date of suit to get a decree, without any such proof, that would not be the case when there is such admission and hence the plaintiff would be entitled