Easwari Amma Gouri Amma v. Narayani Amma Kochali Amma & Others

1. The 11th defendant in a suit originally - filed on 8 71123 m. E. Against 4 defendants for redemption of a mortgage dated 18 61109, Ext. C being a copy of the mortgage deed, Is the appellant.

2. The suit was at first dismissed. Later, On 5 31956 a. D. It was restored to file. After restoration, In 1956 itself on a petition filed by the plaintiffs, Defendants 5 to 23 were impleaded as additional defendants. In 1958 the plaint was amended including an additional prayer for recovery of possession of plaint b schedule item 1 on the strength of title.

3. The facts which comprise the background to this litigation are as follows: the parties are members of a thavazhy, Their common ancestress being one narayani. She had 5 sons, Raman pillai, Parameswaran pillai, Kannan, Kumaran and kesavan and 2 daughters, Easwari and the 1st plaintiff. Easwari died. Plaintiffs 2 to 11 are the descendants in the female line of the 1st plaintiff and the defendants of easwari.

4. Raman pillai, Who was the karanavan of the thavazhy and who died in 1092, Executed on 131091 ext. B. It was described as a will. By it plaint a schedule items 1 to 3 and e schedule item 1 were set apart to the first plaintiff's branch and a schedule items 4 to 9 to easwari's branch. Over plaint a schedule item 10 and b schedule items 2 and 3 the thavazhy had only a mortgage right. In ext. B the branches of the 1st plaintiff and easwari were directed to pay rs. 500/ - to the wife and children of raman pillai. There was provision in it for all the properties covered by it being in the possession of the senior - most member of the thavazhy during his life time.

5. The wife and children of raman pillai obtained a decree in o. S. 1294 of 1100 on the file of the munsiff, Quilon, For the amount directed in ext. B to be paid to them. The 6th plaintiff in the present suit filed o. S. 750 of 1106 in the quilon munsiff's court to cancel that decree. Pending that suit there was a compromise of the disputes. It was pursuant to the compromise that the mortgage was executed on 18 6 1109 in favour of the wife and children of raman pillai including in it plaint a and b schedule properties. Under it possession was given to the mortgagees only of a schedule properties. By successive assignments the mortgage right became vested in defendants 1 to 4.

6. The suit as originally framed was for recovery of possession of a schedule items 1 to 3 and extinguishment of the charge on b schedule items on payment of one - half of the mortgage amount. Defendants 1 and 4 contended that the plaint properties were thavazhy properties of raman pillai, That as such he was incompetent to devise them under ext. B and that 11th defendant and her children were in possession of b schedule item 1. It was then that on motion made by the plaintiffs, Defendants 5 to 23 were impleaded as additional parties. After the 11th defendant filed her written statement the plaint was amended.

7. The only amendment made was in para. 12, 13 and 15. In para. 12 which dealt with the date of cause of action it was stated that after 21111956, The date on which the 11th defendant filed her written statement, Also the cause of action arose. In para. 13 which dealt with court fee for the suit court fee was stated as being paid on the market value of b schedule item 1 also. In para. 15 which dealt with reliefs an additional

prayer was included for recovery from the defendants of b schedule item 1 with mense profits. The other allegations and reliefs continued to be the same as in the original plaint.

8. In her amended written statement the 11th defendant said that ext. B was invalid and that the members of the thavazhy were in possession of the properties as belonging to the thavazhy. She also stated in it that she, Her husband and their children were in possession of b schedule item 1, That improvements had been effected on the property and that she was entitled to the value of the same. According to her the suit for recovery of b schedule item 1 on the strength of title was not competent and the only right of the plaintiffs was to sue for partition of their share in the thavazhy properties including b schedule item 1. An alternative contention was raised by her that even if ext. B was valid and the plaintiffs acquired any right in b schedule item 1 under it their rights in that property had become barred by adverse possession.

9. In their replication the plaintiffs stated that b schedule item 1 belonged exclusively to raman pillai and that ext. B was valid. They also denied the claim made by the 11th defendant for value of improvements. It was averred that the 11th defendant started residing in the property with the consent of parameswaran pillai and that the plaintiffs were not agreeable to the 11th defendant continuing to reside there.

10. The trial court upheld the 11th defendant's contention regarding b schedule item 1 and dismissed the suit in that respect. The lower appellate court decreed the suit in respect of b schedule item 1 also.

11. Counsel appearing for the 11th defendant submitted when this appeal was heard that this appeal related only to plaint b schedule item 1 and that he was not pressing the contention that raman pillai was not competent to deal with the properties covered by ext. B and that ext. B was invalid. The only points that he pressed were that the amendment of the plaint prayed for by the plaintiffs should not have been allowed by the trial court and that the suit in so far as it related to the recovery of possession of b schedule item 1 was barred by limitation. Hence the only points which fall for decision in this appeal are those relating to amendment of the plaint and limitation for the suit.

12. There is no ground taken in the appeal memorandum here regarding the correctness of the order passed by the trial court allowing amendment of the plaint. No such ground was taken in the appeal memorandum filed in the lower appellate court also. The judgment of the lower appellate court does not show that at any time before it the correctness of the order granting amendment of the plaint was impeached. In these circumstances the request to consider the propriety of the order passed by the trial court allowing amendment of the plaint is declined.

13. It was the limitation act of 1908 that was in force when the suit was filed. Counsel appearing for the 11th defendant relied upon art. 123 of the act, Which reads as follows:

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and submitted that as the suit was filed more than 12 years after raman pillai's death it was barred by limitation. Although it is not stated in the first column of that article that the suit contemplated by it must be one against a person who had a liability to distribute the estate it is not difficult to read that article as applying only to suits against such a person because the words "payable or deliverable" in the third column of that article indicate that the person against whom the suit is filed should be one who has a duty to pay or deliver the legacy or distribute the estate. That was how that article was interpreted by the privy council in ghulam mohammed v. Ghulam hussain air. 1932 p. C. 81. That decision was followed by the calcutta high court in suhashini dasi v. Ahi bhusan air. 1963 calcutta 520 and the madras high court in meenakshi sundarammal v. Subramani iyer air. 1955 madras 369. No doubt in raja parthasarathi appa rao v. Venkatadri appu rao air. 1922 madras 457 the madras high court held that art. 123 applied to suits against person wrongly in possession of the estate of the testator and that decision was confirmed in appeal by the privy council in venkatadri appa rao v. Parthasarathi air. 1925 p. C. 105 but it was also held there that the person who was in possession of the estate of the testator must be one under such circumstances that he was bound to deal with it as the estate of the testator. Art. 106 of the limitation act, 1963, Corresponds to art. 123 of the old act. That article reads as follows:

the first column of art. 106 of the new act makes it specific that the suit contemplated is against persons charged with the duty of distributing the estate. Therefore, So far as regards suits governed by the new act there can be no scope for controversy. But even under the old act the scope of the article was not different. Art. 123 of the limitation act does not apply.

14. The only other article that the 11th defendant's counsel relied upon was art. 142. According to him so far as b schedule item 1 was concerned the suit was for recovery of possession of property on the strength of title and in such a case plaintiffs were bound to prove subsisting title i. E., Possession within 12 years before the date of suit and because that had not been satisfactorily proved the prayer for recovery of possession of b schedule item 1 should have been refused. On the other had counsel appearing for the plaintiffs submitted that the suit fell within art. 144 of the limitation act and that it was for the 11th defendant to prove adverse possession and not for the plaintiffs to prove subsisting title.

15. The real issue is the not uncommon one in such cases as this, Namely whether the suit is governed by art. 142 or 144. It is now well - settled by the decisions that, While in suits coming under art. 142 plaintiff has to prove possession within 12 years before suit, In suits coming under art. 144 when the plaintiff proves title the burden is upon the defendant to prove adverse possession for the statutory period. The difficulty is only in the matter of choice between the two articles regarding their applicability to particular cases.

16. The question must always be what has the legislature enacted? that is the question at this stage and to that we now turn. Art. 142 and 144 read thus:

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both the articles apply to suits for possession of property. Of them art. 144 is residuary. Therefore, It can apply only to cases to which art. 142 does not apply. For art. 142 to apply, The suit must be one where the plaintiff while in possession has been dispossessed or has discontinued possession.

17. Different interpretations have been put upon the words 'dispossessed' and 'discontinued the possession', Some cases holding the view that they have to be understood as referring to the averments in the plaint, Some others as referring to the findings on evidence, And still others as referring to the averments in the plaint in the first instance and at a later stage to the findings on evidence. As examples the full bench decisions in bindhyachal chand v. Ram gharib chand 1934 a. L. J. 973 (sulaiman, C. J., And mukerji and king, Jj.) and behari lal v. Narain das a. I. R. 1936 lahore 475 (dilip singh, Addison and din mohammed, Jj.) and the division bench decision in sitamma v. Sithapathi - rac a. I. R. 1938 madras 8 (varadachariar and king, Jj.) may be mentioned.

in bindhyachal chand v. Ram gharib chand 1934 a. L. J. 973. Sulaiman, C. J. Said:

"personally speaking, I do not think that the plaintiff can by cleverly drafting his plaint evade the burden of proof which art. 142 casts upon one who is suing for possession on the ground of dispossession."

and mukerji, J., Said:

"primarily, Therefore, The article to be applicable is to be chosen with regard to the facts stated in the plaint. There may be cases in which the plaintiff's suit would be quite within time if the allegations made in the plaint were correct, But on a trial it may be found that the allegations are not correct. In the circumstances, The court, After finding the facts, Will have to find what article of schedule. 1 of the limitation act would apply to those facts, And having got the right article, To find out whether the suit is within time or not. Just to illustrate what i mean, I will give a simple example.

a plaintiff states in the plaint that he is the owner of the property and he was dispossessed by the defendant two years prior to the suit. The defendant pleads that the plaintiff is not the owner of the property and the defendant has been in adverse possession for more than thirty years. The court finds that the plaintiff was not dispossessed two years prior to the suit but eleven years prior to it. The court further finds that the plaintiff is the owner of the property. On these findings, The court will apply art. 142 although the plaintiff's allegations that he was dispossessed two years prior to the suit is found to be untrue. "

in behari lal v. Narain das a. T. R. 1936 lahore 475, The question referred to the full bench was

"whether in the circumstances of this case and the findings arrived at art. 142 or art. 144, Limitation act. Applied"

and the answer was that art. 142 applied. In sitamma v. Sitapathirao air. 1938 madras 8 it is observed as follows:

"with reference to the plea of limitation, We are not satisfied that the lower court was justified in dealing with the case - as one governed by art. 142, Lim. Act. The allegations in the plaint as well as the evidence tendered during the course of the trial establish that all the suit properties were in the possession of tenants.

a scramble accordingly began after subba rao's death by the attempts made on each side to get the tenants to attorn to the erne side or to the other. In circumstances of that kind the principle of art. 144 and not art. 142. Should be applied. "

18. We have not been referred to any decided case where there is a considered or serious discussion as to which is the correct position. On a careful consideration of the matter the correct position appears to us to be that the words in question refer exclusively to the allegations in the plaint.

19. The first column of the schedule to the limitation act where the words "dispossessed" and "discontinued the possession" occur appears under the heading "description of suit". The term "suit" is not defined in the act except by saying that it does not include an 'appeal' or 'application'. The dictionary meaning of the word appropriate to the context as given in the oxford dictionary is "the legal prosecution of a claim, Action in law court. " the prosecution of a claim is an act on the part of the plaintiff and not of the defendant or of the court and it is the plaint in the case that engrosses that claim. It should follow that the nature of a suit has to be determined by the facts as set forth in the plaint. If in a suit for partition the defendant contends that plaintiff is not entitled to partition but only to maintenance and the court finds on evidence in defendant's favour the suit in spite of the defendant's contention and the court's finding still - remains a partition suit and does not became a maintenance suit. That is because the nature of the suit should be determined by the statements in the plaint alone.

20. The argument that is usually advanced against relying on plaint allegations for the selection of the article is that it will set a premium on false allegations because a plaintiff who has been dispossessed can by suppressing the fact of dispossession and falsely alleging that the defendant is occupying the property with his permission relieve himself of the burden of proving possession within 12 years of the suit and throw on to the defendant the burden of proving adverse possession for 12 years. This is an argument based on public policy. Grounds of public policy can be called in aid only when the meaning of words in the statute is not clear. "the conscious or half conscious or unconscious application of public policy" which is an'unruly horse" and which according to the metaphor introduced by winfield is a foot - ball which suffers the ill - fate of being kicked by everybody although it is essential for the game may justifiably be used on general principles of equity in cases where the legislature has not spoken but its use is not permissible in cases where the legislature has spoken in clear words what it has intended". Where the words of an act are clear they are the primary and ordinarily the most reliable source of interpretation. There is also no reason why an exception in cases involving art. 142 and 144 should be made to the well - established principle of resting burden of proof upon the pleadings of parties. Then again the argument that plaintiff stands to gain by setting up a false case overlooks the fact that he is likely to suffer seriously on the merits on account of the false position taken up by him. With regard to the defendant's complaint that on account of the plaintiff setting up a false case burden of proof comes to be cast upon him, It has to be stated that this is not an exceptional case where on account of one party setting up a false case the other party has to suffer. In a suit on a pronote if the defendant falsely denies execution the plaintiff is put to proof of it. In suits coming under art. 142 and 144 plaintiff as owner of property is entitled to possession and the defendant is taking advantage of the fact that plaintiff has not come to court earlier. The defendant's position in such a suit is not so hard as that of the plaintiff in the other suit based on pronote. There is a further and stronger reason why the argument in question has to be discountenanced. According to the argument it is not pleadings of either party but the findings on evidence that should determine the article applicable. If the argument is accepted it will lead to the anomalous position that the question of burden of proof has to be settled after evidence is taken and findings entered since, As we have already seen, Burden of proof depends upon the article chosen. For all these reasons it is our considered view that for selecting the article applicable the words "dispossessed" and "discontinued the possession" in art. 142 have to be understood as referring to the allegations in the plaint alone. The preponderance of authority afforded by the decisions is also in favour of the view we have taken.

21. In kalliyani v. Kallyani 1969 klt. 362, A decision of raman nayar ag. C. J. As his lordship then was, And subramonian poti, J., The subject matter of the suit was a leasehold right in 2 items of properties. The plaintiff claimed the leasehold right as the heir of her mother who had during her life - time permitted the 1st defendant, Who was her sister, To reside in the building on one of the items. It was on the allegation that in 1958 the defendant obstructed the plaintiff from enjoying the properties and thus the plaintiff had discontinued possession of them that the suit for recovery of possession of properties was filed in 1960. It was held that art. 142 applied. The following observations there are relevant:

"the allegation of the plaintiff in the plaint is one of prior possession and discontinuance of possession. Recovery is claimed on the basis of anterior title of the plaintiff. The averments in the plaint squarely attract art. 142 of the limitation act of 1908."

22. In vally v. Achuthan unni 1966 klt. 86, A decision of velu pillai and krishnamoorthy iyer, Jj., The suit was for declaration of title to property and recovery of possession of the same on the allegation that defendants 1 and 2 trespassed on the property. Defendants 1 and 2 denied the plaintiff's title to the property and the trespass alleged in the plaint. After quoting the relevant allegation in the plaint regarding dispossession it was held:

"in view of the allegation in the plaint extracted above. Art. 142 is the article that governs the suit."

23. In sebastian v. Krishnan 1967 klt. 206, A decision of madhavan nair, J., The suit was for possession of property on the allegation that the defendants were in permissive occupation of it as kudikidappukars and that they had ceased to be kudikidappukars when they acquired 25 cents of land elsewhere. After citing the decision of the supreme court in gurbindar singh v. Lal sing 1965 s. C. 1553 it was observed thus:

"in the present case, The plaintiff has not claimed to have been in possession of plaint item no. 1; nor has he alleged dispossession or discontinuance of possession. All that he averred is occupation by defendants under permission given by his predecessors - in - interest which is consistent only with possession and continuance of legal possession with the plaintiff and his assignors. It follows that, As per the ruling of the supreme court, Art. 142 of the limitation act is not attracted to this suit."

in gurbindar singh v. Lal singh 1965 s. C. 1553 followed in sebastian v. Krishnan 1967 klt. 206 the question whether art. 142 or 144 applied to the case does not appear to have been material because whether the one or the other article applied the plaintiff would in any event have been entitled to a decree. The suit was filed in february 1950. There was evidence in the case that possession of the defendants and their predecessors - in - interest began only in october 1938, Less than 12 years before suit. The high court had decreed the suit holding that the suit came under art. 141. In the appeal before the supreme court counsel for plaintiffs and defendants agreed that art. 141 did not apply. But while the plaintiffs' counsel submitted that it was art. 144 that applied defendants' counsel relied on art. 142 and in the alternative on art. 144. Plaintiffs, Lal singh and pratap singh, Sued for possession as heirs of their grandmother, Raj kaur. Lal singh never had possession of the suit property. Pratap singh had possession of some portion of the property but in a different capacity that is, As transferee from the adopted son of raj kaur. It was in execution of decree obtained by the predecessors - in - interest of the defendants against pratap singh and his transferor that the defendants' predecessors - in - interest got possession of the suit property. Therefore, So far as pratap singh was concerned it was really a case of dispossession. Pratap singh was at first impleaded as defendant but subsequently transposed as plaintiff. Their lordships evidently took the view that possession and dispossession in different capacities would not suffice to bring the case under art. 142. Accordingly it was held that art. 144 applied. The averments in the plaint should have been in conformity with this as can be seen from the following passage.

"it is no one's case that lal singh ever was in possession of the property. It is true that pratap singh was in possession of part of the property which particular part we do not know by reason of a transfer thereof in his favour by bakshi singh. In the present suit both lal singh and pratap singh assert their claim to property

25. In kasar singh v. Balwant singh air. 1967 sc. 487 the supreme court has observed as follows:

"we agree with the high court, However, That a careful reading of paras 3 and 4 of the plaint shows that the respondent's case was that he and his uncle were managers of the bunga as descendants of maharaja sher singh and that the appellant and the other defendant were in possession as their servants or servitors. As originally the possession of the appellant and the other defendant was clearly permissive, There can be no question of the application of art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under art. 144 for over 12 years."

26. In ambika prasad v. Ram ekbal rai, Air. 1966 sc. 605, Also a decision of the supreme court, The suit was for recovery of possession of property on the allegation of dispossession. The question as to whether the suit was barred under art. 47 as it was filed more than 3 years after the order passed under s. 145 of the criminal procedure code had also to be considered there. It was observed:

"the plaintiffs alleged possession and dispossession within 12 years. Assuming that art. 47 does not apply, The suit is governed by art. 142."

27. In abdul v. Bhavani, Air. 1966 sc. 1718, Another decision of the supreme court, The suit after amendment of the plaint was for recovery of possession of property on the ground that the plaintiffs while in possession were dispossessed of the same. There it was held as follows:

"the suit was originally filed by the respondents for a declaration of their title to the suit property, But as they were dispossessed of the land on march 5, 1953 subsequent to the filing of the suit, The plaint was amended on july 24, Praying for delivery of possession. To such a suit art. 142 of the limitation act applies."

28. In quadir bug v. Ram chand,1969 alj. 854 a recent full bench decision of the allahabad high court, The suit for recovery of possession was filed on the allegation that the defendant who was the plaintiff's tenant had denied the plaintiff's title to the property and the lease alleged in the plaint. It was held that even if during trial the tenancy pleaded by the plaintiff was not proved it was art. 144 that applied. It is observed there as follows:

"primarily the article to be applicable has to be chosen with regard to the facts stated in the plaint. There may, However, Be cases in which the plaintiff's suit would be quite within limitation if the allegations made in the plaint were correct, But on a trial it is found that the allegations made by him are either not proved or proved to be false. In such circumstances the court, After finding the correct facts will have to find out which article of the first schedule to the limitation act would apply to those facts and having got the right article to find out whether the suit is within time or not."

according to this dictum the words in the first column of art. 142 have to be interpreted in different ways at different stages of the suit, They having at the earlier stage to be understood as referring to the situation as stated in the plaint and at the later stage as referring to the situation as found on evidence. With great respect it has to be said that we cannot find our way to accept that position. To accept that view the legislature will have to be taken to have consciously adopted that ambiguity in its use. Of words. If the finding on evidence is that defendant had been in adverse possession for 12 years the suit goes and there is no difficulty on account of choosing the article on the basis of the allegations in the plaint. If the finding is that plaintiff has been in possession within 12 years of the suit then also no difficulty can arise on account of the wrong choice of the article. Difficulty can arise only when defendant is found to have been in possession for more than 12 years but this possession has not amounted to adverse possession. That difficulty appears to be due to a lacuna in the frame of the schedule attached to the limitation act. The scheme of the schedule is to provide for a special rule of limitation in as many classes of suits as possible and then to provide a residuary article to cover cases not so provided for. Regarding suits for possession of immovable property on the strength of title certain specific cases have been provided under art. 142 and 143. All the left out cases must have been intended by the legislature to come under the residuary art. 144. But the time of commencement of limitation given in the 3rd column of art. 144 would restrict the article to cases where defendant has been in adverse possession. The result is that where plaintiff brings a suit for possession saying that defendant has been in permissive possession and the evidence is that defendant's possession is neither permissive as alleged by the plaintiff nor adverse as contended by the defendant there will happen, If we may say so, Failure of law because plaintiff becomes entitled to a decree for possession in spite of the fact that he had been out of possession for 12 years. Under the common law he would be entitled to a decree for possession only on proof of subsisting title. But the theory of subsisting title which means that in all suits for possession on the strength of title plaintiff must prove not only title but also subsisting title, That is possession within 12 years of suit, Disappeared with the passing of the limitation act, Because, In cases coming under art. 144, Plaintiff has not to prove possession within 12years. With great respect it has to be stated that the device of getting over the aforesaid difficulty by understanding the words in the statute in different ways at different stages of the suit as suggested in quardi bux v. Ram chand 1969 alj. 854 does not appear to be the proper remedy. Difficulties of this kind have been got over by the limitation act of 1963.

29. We must now turn to consider some of the arguments usually raised in cases of this kind. As permissive possession implies prior possession of the plaintiff when he fails to prove permissive possession should not an inference be drawn that it is a case of dispossession or discontinuance of possession and the suit be treated as one falling within art. 142? it has already been seen that for determining the article applicable one is not justified in travelling beyond the allegations in the plaint. When once the article is so determined it is final also. That cannot change with the turn of evidence. Since a suit where permissive possession is alleged comes under art. 144 and the plaintiff in such a suit has only to prove title no inference can be made against him because of his not having adduced evidence to prove defendant's permissive possession.

30. Is not every case where plaintiff sues for possession one where he admits he is out of possession? if the answer is yes does it not then follow that he or his predecessor in title had at some time prior to the suit been dispossessed or had discontinued possession. If the answer to it is also yes should not all suits for possession be treated as coming under art. 142 and that article alone. This line or argument assumes that defendant cannot be in possession of plaintiff's property otherwise than in the aforesaid two ways. Other ways of defendant being in possession of plaintiff's property are conceivable. If plaintiff has got a property which remains unoccupied by him because of his not knowing of his rights in the property and the defendant enters upon the property either knowing that the property belongs to plaintiff or not knowing it and thinking that it belongs to some other individual or to government and subsequently plaintiff coming to know of his rights over the property sues for possession, In such a case defendant's possession is not as a result of plaintiff's dispossession or discontinuance of possession. "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. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, That is to say, Not against the will of the person in possession but in accordance with his wishes and active consent. The term "discontinuance" implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, But this cannot be assumed. " 1966 alj. 854. If defendant is in permissive possession there is no dispossession of the plaintiff or discontinuance of possession by him. In case of dispossession and discontinuance of possession when a suit is filed for possession it is one for recovery of possession, The term "recovery" having the meaning regaining or getting back possession. Guardedly in the description of the suit the words used in art. 142 and 144 are "for possession" and not "for recovery of possession". And that is not without significance. Hence the line of argument that in all suits where plaintiff is out of possession and he sues for possession it is art. 142 and that article alone that applies cannot also stand.

31. In the present case in the plaint the plaintiffs do not plead dispossession or discontinuance of possession. Therefore the suit falls within art. 144 of the limitation act. The plaintiffs are entitled to a decree for recovery of possession of property unless the 11th defendant has succeeded in proving that the rights of the plaintiffs have been lost by adverse possession. In the written statement the contention that plaintiffs' rights in the property had been lost by adverse possession was put forward by the 11th defendant only in the alternative. Her primary contention was that the will was invalid as raman pillai was incompetent to deal with plaint b schedule item 1 as it belonged to the thavazhy and that the members of the thavazhy were in possession of it along with other properties as belonging to the thavazhy. In para. 8 of her amended written statement she claimed exclusive title only in respect of the building and improvements standing on b schedule item 1. In para. 11 of the written statement she contended that the only right of the plaintiffs was to sue for partition of all the properties belonging to the thavazhy and not to sue for recovery of possession of b schedule item 1 as belonging to them exclusively under the provisions of the will. Dw. 5 is the husband of the 11th defendant. In cross - examination he unambiguously said that all the members of the thavazhy including the plaintiffs and the defendants were equally entitled to b schedule item 1 and that what the 11th defendant and her children were exclusively entitled to was only the improvements on the property. Ext. P21 is a copy of a sale deed executed by the 11th defendant and others. It is true that in it the 11th defendant is described as residing in b schedule item 1. The fact that she is residing in the building on the property is not disputed by the plaintiffs. Exts. P11 to p14 are receipts to prove payment of tax for the property. Of them exts. P12 to p14 are receipts for payment of tax obtained after the institution of the suit. Ext. P11 is of the year 1118. From the mere fact that the 11th defendant was residing in the property and that she had paid tax for it 5 years before the institution of the suit it cannot be taken that she was in possession of the property adversely to the plaintiffs. As per the provisions in the will parameswaran pillai was in possession of b schedule item 1 till his death in 1123 and it was in the same year that the present suit was filed. There is no evidence to show that at any time before suit the 11th defendant cherished a hostile animus and asserted hostile title to plaint b schedule item 1. Plaintiffs' rights in the property have not been lost by adverse possession.

32. In the result this appeal is dismissed with costs.