Hari Ram vs Himmat Singh and Others

The Defendant/Appellant has come up in appeal aggrieved by the judgments and decrees of the Courts below granting a declaration to the Plaintiff/ Respondent as to his title over the suit property and restraining the Defendant/ Appellant From causing any interference therewith.

The suit property consists of one Bigha and one Biswa area of Survey No. 165, situated at village Tewari, Tehsil and District Vidisha. Accocding to the Plaintiff/Respondent he had been in possession of the suit property continuously for a period over 25 years in denial of the title of the Defendant/Appellant and hence he has perfected his title over the suit property by adverse possession. The suit was filed on 13-12-71. All the material averments were denied by the Defendant/Appellant. The Courts below have held the plea taken by the Plaintiff/Respondent proved.

The singular question which arises for decision is:

Whether the Plaintiff can be said to have perfected his title by adverse possession ?

A perusal of the documents filed before the trial Court shows that the Defendant/Appellant was an Ex-proprietor of the village. The Madhya Bharat Zamindari Abolition Act, 1950, came into force on 25-6-1951 and the date appointed for abolition of proprietary rights was 2-10-1951. It is not disputed by the Defendant/Appellant that the suit land formed part of the Zamindari and was not saved from vesting and hence vested in the State. It was a grazing land. Subsequently to the abolition of proprietary rights, the State Government issued a circular order expressing its policy that grazing lands calculated at the rate of 20 per cent of the holding of the Zamindari shall be settled with him. Consistently with the circular order, the Defendant/ Appellant moved an application to the Collector, Vidisha and the latter by his order dated 16-7-69 (Ex. D/1) directed the suit land to be settled with him. On point of clarity it may be stated that the order (Ex. D/1) states Survey No. 213, area 2 Bighas 17 Biswas. It is a comparative number of the suit land Survey No. 165, area 2 Bighas 17 Biswas. The above narration of the events shows that between 2-10-51 and 16-7-69 the suit land was Government land.

It is submitted by the learned Counsel for Defendant/Appellant that the title to the Defendant/Appellant accrued only on 16-7-69; as against the State, the Plaintiff/Respondent could not have perfected title by adverse possession except by prescribing the same for a period over 30 years. In so far as the Defendant/Appellant is concerned, as against him, the Plaintiff/Respondent had prescribed hostile title only for a period little over 2 years till the date of filing of the suit. This important aspect of the case has been totally overlooked by the Courts below and that is why they fell into error in holding that the Plaintiff/Respondent had acquired title by prescribing hostile possession for over statutory period, submits the learned Counsel.

The point is covered by a Division Bench decision of Madras High Court in (Ayyagari) Venkata, Suryanarayana Vs. Makka Venku Naidu and Others, The facts therein bear a close resemblance to the facts of this case. A learned Single Judge who initially heard the second appeal noticed a controversy between a few decision of Calcutta and Madras High Courts and hence referred the matter to a Bench of Two Judges to resolve the controversy. The Division Bench dissented with the Single Bench decision in Gourikantam and Others Vs. Ramamurthy and Others, the only decision taking a view to the contrary, and expressing agreement with the view discernible from the majority decisions held as under: -

The reference was rendered necessary on account of the decision of Wallace, J., reported as Gourikantam and Others Vs. Ramamurthy and Others, in which he held on the authority of the Privy Council decision reported as Venkata Jagannatha v. Veerabhadrayya AIR 1922 PC 96 , that unless the Government had at the time of resumption no right to resume, the first Defendant has no case; that is to say that although there might have been 12 years'' adverse possession against the grantee, such adverse possession could not be effective when there was a further grant by the Government before the right of Government had been lost by prescription In coming to this conclusion the learned Judge appears to have relied on a sentence in the judgment of Ayling, J., in Krishna Sastri and Others Vs. Singaravelu Mudaliar and Others, that is the grant of a new title which could be questioned by any outsider who had trespassed on the property would be meaning less, but we may observe that the sentence merely relates to the validity of the title conferred by the grant and has no reference to the question of possession. In the present case it would no doubt have asserted its title and resumed possession from the Defendant and given possession to the grantee. That has not been done. The Government is no party to the suit. As against the Plaintiff there has been adverse possession for over 12 years and such adverse possession was also adverse possession to the Government and the question of whether such possession gives a good title against the Plaintiff has been definitely decided in the affirmative in Kuthape-rumal Rajali v. Secretary of State (1907) 30 Mad. 246 and Annada Mohan Roy Chowdhury Vs. Kina Das and Others,

These two decisions are also in accordance with the principle laid down in Jagadindra Nath Roy v. Hemanta Kumari Debi (1905) 32 Cal. 129; Municipal Commissioners for the City of Madras v, Sarangpani Mudaliar (1896) 19 Mad. 154 and Pullanpally Sankaran Nambudri v. Villi Thalokat Mohamed (1905) 28 Mad. 505 . We accept these authorities in preference to the decision of Wallace, J., in Gourikantam and Others Vs. Ramamurthy and Others,

Out of several decisions referred to in Venkata Suryanarayana''s case (supra) it will be useful to separately refer to the Division Bench of Calcutta High Court in Annada Mohan Roy Chowdhury Vs. Kina Das and Others, The suit was instituted by a purchaser of land from Government to recover possession within 60 years but after more than 12 years from the commencement adverse possession although within 12 years of purchase. The argument raised on behalf of the Plaintiff was that a private person in such circumstances is entitled to get, before his right becomes extinguished, either 12 years from the date of his purchase or the period to which the Government would still be entitled, whichever is less. Buckland, J. speaking for the Division Bench repelled the argument observing: -

I see no grounds whatever for any such construction. It would give such purchaser an advantage which the law does not allow. If the period of 12 years was the less, then the previous adverse possession against the Crown, and consequently Section 2 (8) would be entirely ignored, if the balance of the period to which the Crown is entitled were the less, the Plaintiff would be obtaining the benefit of the full period of 60 years allowed to the Crown, to which it is conceded he is not entitled.

[Reference to Section 2 (8) in the citation is to the definition of ''Plaintiff'' from the Limitation Act, 1908, equivalent to the similar definition given in Section 2 (i) of the Limitation Act, 1963, which provides that ''Plaintiff'' includes any person from or through whom the Plaintiff derives right to sue.]

It was argued before the Division Bench in Ananda Mohan Roy''s case that such a construction might lead to an absurdity, which argument too was repelled in the following terms:

When a conveyance of property is to be taken from Government against whom other persons are in adverse possession, it should not be taken until the Government has instituted proceedings and obtained an order for possession and is in a position to transfer the property free from such blot on the title.

It is not the case of the Plaintiff that the Government had initiated any action for removing the trespass of the Defendants.

I find myself in entire agreement with the view taken in the above-said decisions. It may be placed on record that no decision subsequent to the above decisions and taking a view to the contrary has been brought to my notice.

For the foregoing reasons, no fault can be found with the view taken by the Courts below. The appeal is dismissed. In view of purely legal controversy, arising for decision, the parties are left to bear their costs as incurred. Counsel fee as per schedule, if precertified.