AIR 1940 MADRAS 798

Madras High Court

Hon'ble Judge(s): Leach , C.J. AND Mockett, Krishnaswami Ayyangar , JJ

(A) Limitation Act (9 of 1908) , Art.142— Suit for ejectment by person out of possession - He cannot succeed unless he, in addition to title, proves that be has been in possession within 12 years of suit - Burden is not on defendant to prove adverse possession : 21 MLW 398 - AIR 1925 Mad 834 : 87 IC 386 and 25 MLW 127 - AIR 1927 Mad 287 : 99 IC 312, Overruled. It is wrong to say that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows in addition to title, that he has been in possession of the property within 12 years of the suit. The burden lies upon the plaintiff to prove that he was in possession within 12 years of suit; the onus is not upon the defendant to prove adverse possession for a period of 12 years :(Para 801C2 803C12) (B) Limitation Act (9 of 1908) , Art.142— Suit by purchaser at Court auction in execution of mortgage decree for ejectment of person in possession of property is covered by Art.142. When the owner mortgages his property part of his interest passes to the mortgagee, but when the property is sold at a Court auction the purchaser has vested in him th....