PART II.
Defences.

DIV. III.

Suits for Possession of Specific Property.

That at the time of the execution and delivery of the conveyance mentioned in the plaint the lands therein described were in the actual possession of this defendant, who then and ever since claimed to be the owner thereof, and now claims, adversely to the said grantor.`

Title by Adverse Possession.-The principle adopted in this country appears to be, that the period of possession which is sufficient to bar the remedy is also sufficient to transfer the right.*

One who holds on behalf of another does not by mere denial of that other's title make his possession adverse, so as to give himself the benefit of the Limitation Act; and non payment of rent for more than twelve years does not constitute adverse possession, where the possession may be referred to a contract of tenancy, under which the tenant entered, for if once the relation of landlord and tenant is established, it is for the defendant to prove its determination by affirmative proof, over and above the mere failure to pay rent.§

Adverse Possession-Practice.-When the defendant pleads limitation, plaintiff is bound not only to prove his title, but also to show affirmatively that his cause of action accrued within twelve years; he must succeed upon the strength of his own title, not upon the weakness of his opponents; but when plaintiff claims under a specific title, and more than twelve years' possession, he is entitled to a decree on the strength of his twelve years' possession, even though he fail to make out his specific title;¶ and conversly, where defendant sets up a specific title, and also pleads limitation, he cannot be ejected if he prove more than twelve years' adverse possession alone.**

Ameeroonissa Begum v. Amir Khan, 17 W. R. 119; Ram Sahoy Singh v. Kooldeed Singh, 15 W. R. 80; Raja Baradakant Roy Bahadur v. Prankkishna Paroi, 3 B. L. R., A. C., 343.

Bejoy Chunder Banerjee v, Kally Prosonno, Mookerjee, I, L. R., 4 Cal. 327.

‡ Dádobá v. Krishna, I. L. R., 7 Bom. 34; Tátiá v. Sadashiv, I. L. R., 7 Bom. 40. § Prem Sukh Das v. Bhupia, I. L. R., 2 All. 517; Rungo Lall Mundul v. Abdool Guffoor, I. L. R., 4 Cal. 314; 3 C. L. R. 119; Pudar Bindoo Mahantee v. Mohesh Chunder Sein, 20 W. R. 183.

Lutchoo Khan v. W. Foley, 24 W. R. 273.

¶ Goluck Chunder Masanta v. Nundo Coomar Roy, I, L. R., 4 Cal. 699; Gossain Dass Chunder v. Issur Chunder Nath, I. L. R., 3 Cal. 224; Sambhubhai Harsandás v. Shivláldás Sadashivdás Desái, I. L. R., 4 Bom. 89; Pemráj Bhavánirám v. Nárayan Shivarám Khisti, I. L. R., 6 Bom. 215.

** Lokenath Misser v. Moharanee Sreemutty, 24 W. R. 147.

Div. III.

Suits for

In a suit for possession against a tenant who is really a trespasser, the defend- PART II. Defences. ant, merely by alleging tenancy in his written statement, does not preclude himself from setting up the defence of limitation.* Symbolical Possession.-Symbolical possession, such as may be given by Possession the Nazir of a Court by sticking a bamboo into the ground, or the like, of a dwell- of Specific ing house, or of a share of a dwelling-honse, of which actual possession might Property. have been granted, is not such a bona fide possession as will save limitation; † such a possession amounts to an actual transfer of possession as between the parties to the suit; but it has no such operation against third persons who are not parties to the suit.

Co-sharers.-Possession of land does not constitute adverse possession in relation to a co-sharer, unless the latter claims, or asserts, some right in the land which is denied by the sharer in possession.§

Dino Monee Debia v. Doorga Pershad Mojoomdar, 21 W. R. 70.

Shoteenath Mookerjee v. Obhoy Nund Roy, I. L. R., 5 Cal. 331; Pearee Mohun Poddar v. Jngobundhoo Sein Baboo Shem Chunder, 24 W. R. 418.

Ranjit Singh v. Bunwari Lal, I. L. B., 10 Cal. 993; Juggobundhu Muckerjee v. Bam Chunder Bysack, I. L. R., 5 Cal. 581; 5 C. L. R. 548.

§ Shurfunnissa Bibee Chowdhrain v. Kylash Chunder Gungopadhya, 25 W. R. 53.

1. That A B died insolvent; he was entitled at his death to some immoveable property which the defendant sold, and which produced the nett sum of Rs. and the testator had some moveable property which the defendant got in, and which produced the nett sum of Rs.

Rs.

2. That defendant applied the whole of said sums, and the sum of which the defendant received from rents of the immoveable property, in the payment of the general and testamentary expenses, and some of the debts of the testator.

3. That defendant made up his accounts, and sent a copy thereof to the plaintiff, on the 18 and offered the plaint

day of

iff free access to the vouchers to verify such accounts, but he declined to avail himself of defendant's offer.

4. That defendant submits that the plaintiff ought to pay the costs of this suit.

That she denies that she has on divers or any occasions committed adultery with X Y as alleged in the plaint.

Defendant states :

Form No. 533.
CONDONATION.

2. That after the time mentioned in the plaint, and before this suit, the plaintiff, being informed as to the matters therein alleged, freely condoned and forgave the defendant thereof (and freely cohabited with him).

2. That ever since such condonation the defendant has been a faithful husband to the plaintiff, and has constantly treated her with conjugal kindness.

Condonation Defined.-Condonation is forgiveness of a conjugal offence, with full knowledge of all the circumstances; it is a question of fact, not of law.f There can be no condonation without renewed cohabitation, which, however, does not mean renewed sexual intercourse.

Form No. 534.

ALLEGATION OF REVIVAL OF ADULTERY CONDONED.

That even if she had condoned the said adultery, the same has been revived by the subsequent (state offence) of the respondent:

Revival.-Condonation means forgiveness with a condition, that is, a condition that the party in the wrong shall not again commit a similar act, in which case the previous wrong condoned is revived by the subsequent wrong,§ and the subse quent offence need not be ejudem generis as the offence condoned.

Where the husband has condoned his wife's adultery, subsequent misconduct tending to, though falling short of, adultery, revives the condoned adultery.¶

Form No. 535.

EXCUSE FOR Refusing to COHABIT.

Defendant states:

1. That he denies that he has, without any lawful excuse, withdrawn from bed, board, and mutual cohabitation with the plaintiff.

* Dempster v. Dempster, 31 L. J., P. and M., 20.

+ Peacock v. Peacock, 27 L. J., P. and M., 71.

Keats v. Keats, 28 L. J., P. and M., 57; see Divorce Act, 1869, s. 14.

§ Dent v. Dent, 34 L. J., P. and M., 118.

|| Durant v. Durant, I Hogg 765; Palmer v. Palmer, 29 L. J., P. and M., 124. John Francis Pereira v. Helen Charlotte Pereira, I. L. R., 5 Mad. 118

PART II.
Defences.

Div. IV.
Suits for
Special

Relief.

PART II.
Defences.

Div. IV.

2. That on the

day of

18, before he withdrew him

self from bed, board, and mutual cohabitation with plaintiff as in the Suits for plaint alleged, the respondent discovered that the plaintiff had, on the 18, committed adultery with one M N at

Special
Relief.

day of

What is Good Excuse.-Legal ground in section 32 of the Divorce Act, 1869, means a matrimonial offence, such as adultery, cruelty, &c., and nothing shall be pleaded in answer which would not be ground for a suit for judicial separation, or a decree of nullity of marriage."

Deed of Separation-No Bar.-The existence of a deed of separation is no bar to a suit for restitution of conjugal rights;† but when the separation has been executed for valuable consideration a Court of Equity will grant an injunction to restrain the party from suing for restitution of conjugal rights.‡

CHAPTER III.

FORECLOSURE AND REDEMPTION OF MORTGAGES.

Form No. 536.

DENIAL OF MORTGAGE BY PURCHASER FROM ALLEGED Mortgagor.

Défendant states:

That he deuies that the said (alleged mortgagor) at any time executed said alleged bond or mortgage, and denies that the said (alleged mortgagor) at any time assigned said alleged bond or mortgage to the plaintiff, and denies that plaintiff is now the owner or holder of said alleged bond or mortgage.

That the plaintiff did not cause his said mortgage to be registered as alleged, or at all, and this defendant had not notice, actual or constructive, of the existence of the plaintiff's said mortgage, at or before the time this defendant took his said conveyance.

* S. 33.

+ Crabb v. Crabb, 37 L. J., P. and M., 42; Spering v. Spering, 32 L. J., P. and M., 116; Hunt v. Hunt, 32 L. J., P. and M., 168.

Hunt v. Hunt, 31 L. J., Ch., 161.