Krishnammal vs Pichannavayyan and Another

The plaintiff's title being established, the only question is whether her right to recover the property she has purchased is barred by the Law of Limitation.

We understand it to be found as a fact that the plaintiff's vendor, or rather Sellammal, the mother and guardian of the plaintiff's vendor, was along with the vendor's uncle in possession of the property up to the date of the partition effected on the 3rd November 1880. It is not found that Sellammal was disturbed in her possession or excluded from it by the uncle after that date. The conclusion at which the District Judge arrives is that there was a discontinuance of possession owing to the fact that the house was in bad repair. The District Munsif seems to have been of the 9ame opinion. We think that, having regard to the facts found the Courts'' below were wrong in holding that the suit was barred by limitation.

Discontinuance of possession takes place Only when the person in possession goes out and is followed into possession by another. The conduct

of. Sellammal being explained by.the condition of the premises, it cannot be said that, because she did not, live in the house or exercise, rights of ownership, she intended to give up possession. It is not alleged that, she was. excluded from possession as appears to have been the fact in the Bombay case cited by the District Judge.

The case of Lakshman Vinayak Kulkarni v. Bisansing ILR 15 B. 261 more clearly resembles the present. There it was held that Article 144 of the Schedule to the Act applied and that, therefore, it was for the defendant to show that he had adverse possession for more than twelve years before the suit.

On the ground that, there was no dispossession or discontinuance of possession on the vendor's part, and no such adverse, possession proved on behalf of the 2nd defendant, we think that the suit was not barred by limitation, and accordingly reverse the decrees of the Courts below and decree for the plaintiff as prayed for with costs throughout.