Khaji Mir Majavath Alli vs Khaji Mir Mujafar Alli and Another

Odgers, J.—The plaintiff brought the suit to establish his right to half share in the properties of one Joram Bi deceased. As to items 3-6 in

the plaint schedule, the defence is raised that they originally formed Khaji inam lands and that such lands were in fact inalienable and impartible.

The Munsif found that these items were the properties of Joram Bi and were liable to partition and gave plaintiff a decree. This was confirmed on

Appeal by the District Judge. Joram Bi had been in possession for 40 years and the District Munsiff held that 1st defendant had failed to show that

her enjoyment was permissive. He also held that the Khaji inams were divided among the several members of the Khaji family long long ago with

the result that each member or group of members hold separate and defined shares. The District Judge also held that the several branches of the

Khaji family were enjoying portions of the plaint items as their separate property. I am by no means certain that these findings are not sufficient to

dispose of the appeal on the short ground that the Khaji inam lands have long ago become disannexed from the office and that the possessors have

acquired an absolute right subject to any rights of resumption that Government might have. The case has however been argued before us on the

law on the ground that Joram Bi''s possession cannot be considered to be adverse as the land in question always appertained to the holder of the

office and was resumable by him at any time?

The first case cited for the appellant (1st defendant) is Vidyavaruthi v. Balusami Ayyar 41 M.L.J. 346 (P.C.).

There the possession sought to be declared adverse was continued by a series of leases each valid for the lifetime of the grantors. The

possession was clearly permissive. In Jalandhar Thakur v. Jharula Das 42 Cal. 244 (P.C.), it was decided that a person not qualified for an

hereditary office had not taken possession of it by appropriating a share of the daily offerings to which he had acquired no title. Each such taking

was a fresh actionable wrong. There was here no question of Immovable property or of adverse possession. In Kamalathammal v. Krishna Pillai

(1910) 20 M.L.J. 783 all that was decided was that the 1st defendant had not acquired a right to the office by possession of the lands for over 12

years. It was also held that Gnanasambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29 (P.C.) had not overruled Mahomed v. Ganapati

ILR (1889) M. 277.

Further reference will be made to those cases. In Dhanushkotirayudu v. Vankayala Venkatarathnam (1919) 38 M.L.J. 320 it was held that

Article 144 applies to a case of this sort and that a person in adverse possession of lands annexed to the office of Karnam for over the statutory

period acquires a prescriptive title against the holder of the office and his successors following Chintalapudi Neelachalam adu Another Vs.

Chintalapudi Kamarazu, and the Privy Council ruling in Gnansambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29 (P.C.). With regard to

the latter case, the High Court in Velu Pandaram v. Gnanasambanda Pandara Sannadhi 6 M.L.J. 39 had held that plaintiff''s right was not barred

as that suit was brought within 12 years of the accrual of the right. The Privy Council reversed this decision on the ground that the respondent Velu

was only entitled as heir to his father Nataraja and the latter''s claim was barred as he had alienated to a purchaser whose possession was adverse.

In Mahomed v. Ganapathi ILR (1889) M. 277 it was held that (p. 280 subject to the law of limitation...limitation). In this case the plaintiff sought

to eject the defendant as holding under an invalid alienation made by plaintiff''s predecessor in office. In Chintalapudi Neelachalam adu Another

Vs. Chintalapudi Kamarazu, , it was held that the Privy Council ruling in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29

(P.C.) was applicable to lands alienated by the holder for the time being of the hereditary office of Karnam and that possession adverse to the

holder of the Karnam''s office is adverse to his successors. The law thus seems perfectly clear. I must hold that this case falls under the rulings in

Chintalapudi Neelachalam adu Another Vs. Chintalapudi Kamarazu, , Dhanushkotirayudu v. Venkayalu Venkatarathnam (1919) 38 M.L.J. 320

and Gnanasambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29 (P.C.). No question of limitation was raised by the pleadings or issues. It

has however become necessary to consider the law in the light of appellants'' contention that 1st defendants'' possession was permissive as to

which the District Munsif found there was no evidence; prima facie possession is adverse. One case remains to be considered. In

Dhanushkotirayudu v. Venkayala Venkatarathnam (1919) 38 M.L.J. 320 reference is made to Papaya v. Ramana ILR (1883) M. 85 where the

decision in the latter case is said to be to the same effect as the decision in Chintalapudi Neelachalam adu Another Vs. Chintalapudi Kamarazu, .

A little difficulty has been caused partly by the brief nature of the report. In Papaya v. Ramana ILR (1883) M. 85 the 3rd and 4th defendants

leased in 1878 land belonging to the Mirasi land of a Karnam''s office to the father of plaintiff and this land was alleged to have been wrongfully

taken possession of by the defendants 1 and 2. These defendants pleaded that father of defendants 3 and 4 had mortgaged the land to them in

1861 and that the mortgage was still in force. The Munsif found that the mortgage deed dated 1865 was unregistered and lost, not that defendants

had acquired a title by adverse possession for 12 year''s. On appeal it was held that the deed of 1865 was not a mortgage and defendant held

under the mortgage of 1861, ""admitted by them."" The High Court held the alienation (of 1861) by the father of the defendants 3 and 4 though no

doubt good for his lifetime could not bind his successor and that that no adverse possession had been acquired against his successors as the suit

had been brought within 12 years of their accession to office. There the possession did not begin to be adverse till that accession. In the present

case the possession is found to have been adverse for a very long time 30 years at least. The decision (Ex. IV) in 1876 tan only be applicable in

this case as res judicata and as such this was not pressed before us. It is obvious that it cannot operate, as such. The only point decided was that

the plaintiff in that suit was not entitled to a separate share of the lands, fees and etc., belonging to the office of Khaji. It does not assist us to

determine the question in this appeal and is in our opinion irrelevant. The second appeal fails and must be dismissed with costs.

Hughes, J.

This appeal relates only to items 3 to 6 of the plaint schedule. These items form a portion of the Khaji inam. The members of the Khaji family

divided the inam lands amongst themselves many years ago and since then the members of the family had been in possession of separate portions

of the Khaji inam. Ex. III shows that the inam was divided half a century before 1861 as the result of this division, Akkumesh, husband of Jorambi

was enjoying items 3 to 6 and after his death his widow Jorambi was in possession of them for more than 30 years. Joram Bi died in 1919 without

issue and the plaintiffs'' case is that plaintiff and respondents 1 and 2 are the heirs but defendants are preventing the plaintiff from getting his share

and hence the suit. The defendants do not dispute the right of plaintiff to a half share of the other properties of Joram Bi but they maintain that since

the 1st defendant is the Khaji having been appointed to that office after the death of the previous Khaji, the 1st defendant is alone entitled to items

3 to 6 as they are inam lands and only the person who holds the office of Khaji has a right to the lands and patta is issued only in his name. 1st

defendant claims that the inam lands are inalienable and impartible and he explains the division that admittedly took place by saying that dayadies

enjoyed some portions of the lands with the consent of the persons who were doing Khaji service.

In the present case there is no evidence that the possession of Joram Bi was permissive. Assuming then that Khazi inam lands are inalienable and

impartible the real question for decision is whether when inam lands are held adversely to the office holder for more than 12 years the person in

adverse possession acquires a prescriptive title to the lands as against the holder of the office and his successors. The District Judge has found that

the items 3 to 6 became the property of Joram Bi.

The appellant (1st defendant) relies upon the Privy Council case in Musti Venkata Jaganadha v. Veerabhadrayya 41 M.L.J. 1 (P.C.) but the

only point decided in that case was that when karnam service lands have been enfranchised the lands are the separate property of the enfranchised

and not subject to any claim for partition by other members of the family. No question relating to adverse possession was considered therein.

The next case quoted by the appellant is the case Jhalandar Thakur v. Jharula Das 27 M.L.J. 100 (P.C.); but that is not applicable here. In that

case it was decided that a person who adversely appropriated a share of the daily offerings due to a Sheba it was not thereby constituted a Shebait

and every occasion of such wrongful taking was a fresh actionable wrong and so there was no limitation. In i Law Weekly, at page 827 there is

another case Chandrakantan v. Subbarayudu. No doubt it is therein stated that even if the plaintiff''s alleged joint possession with the office holders

was regarded as adverse, this would not give him a title even to a share of the income of the lands and for that position the learned Judges refer to

the case at page 549, quoted supra. But they found as a matter of fact that his enjoyment was permissive.

In the Privy Council case Gnansambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29 (P.C.), it was decided that the sale of the lands,

forming the endowment of a certain religious foundation, by one Nataraja was invalid and Velu, the son of Nataraja could not claim to have been

entitled to otherwise than as heir, to and from and through his father, in whose lifetime the title had been extinguished by lapse of time and adverse

possession of the defendant, and consequently Velu''s suit was barred.

This Privy Council case was followed in Neelachalam v. Kamarazu (1904) 14 M.L.J. 439. In that case it was decided that in regard to lands

alienated by the holder for the time being of the hereditary office of karnam the case of Velu Pandaram is as ''much applicable as to lands alienated

by the holder of the hereditary office of trustee and limitation runs from such date ""not only against the alienor but also against his immediate and

other successors.

These principles will also apply to the case of alienation by a Khaji who holds office hereditarily.

The case on which the respondent chiefly relies is very much in point. It is Dhanushkotirayudu v. Venkayala Venkatarathnam (1919) 38 M.L.J.

In that case it was held specifically that a person in adverse possession of lands, annexed to the office of karnam, for over the statutory period

acquires a prescriptive title to the lands as against the holder of the office and his successors. In arriving at that decision, the learned Judges

followed the case in Neelachalam v. Kamarazu (1904) 14 M.L.J. 439 and also Velu Pandaram''s case 10 M.L.J. 29 (P.C.). But they also referred

to the case of Papayya v. Ramana I.L.R.(1883) M. 85 as being to the same effect. This has occasioned some difficulty because in the case of

Papaya v. Ramana I.L.R(1883) . M. 85 it was laid down that that suit was in time as it had been brought within 12 years from the date when the

succession to the office devolved on the plaintiffs. It is argued therefore that that every successor in office has the right to sue from the date he

becomes entitled to possession. This argument, based on Papaya v. Ramana ILR (1883) M. 85 was in fact placed before the Privy Council in

Velu Pandarnm''s case but the Privy Council did not specifically refer to that case and evidently considered it had no application and the reason is

obvious when we examine closely the case Papaya v. Ramana ILR (1883) M. 85. That case is quite consistent with the theory that Article 144 of

the Limitation Act applies. The point is that one has to ascertain when the possession became adverse. The possession in the case of the

defendants in Papaya v. Ramana I.L.R.(1883) M. 85 was traced to a usufructuary mortgage and would not therefore be adverse to the mortgagor

but would become adverse to his successor from the date of the death of the mortgagor, in other words from the date when the succession

devolved on him. In Vein Pandaram''s case the possession was adverse ab initio.

A similar explanation accounts for the decision in Mahomed v. Ganapathi ILR (1889) M. 277 in which case also the possession originally

permissive under a lease, became adverse only when the successor became entitled to question the disposition of his predecessor, that is at the

date of his predecessor''s death. The case of Mahomed v. Ganapathi ILR (1889) M. 277 was referred to in I. L. R. 23 Mad 439 and was

considered to be consistent with the view that adverse possession held during the last office-holder''s time bars his successors too. In the same

case, reference was made to the decision of the High Court in Velu Pandaram''s case 6 M.L.J. 39 and it was pointed out that the decision might

not be reconcilable with the rule so stated and the Privy Council later on reversed the decision in Velu Pandaram''s case (1895) 19 M. 243 .

In fact, so long as the alienation is good for the lifetime of the alienor, limitation commences to run as against the successor not from the date of

alienation but from the date of the alienor''s death.

It is otherwise when possession is adverse from the start.

There is only one other case to which reference need be made as it has been relied upon by the appellant and that is the Privy Council case in

Vidya Varuthi v. Baluswami Aiyar ILR (1921) M. 830. But the decision is against him. It is clear therefore that a lessee has not adverse

possession under Article 144 during the life of the head of the Mutt who granted the lease and if the lessee''s possession is consented to by the

succeeding head, that consent can be referrable only td a new tenancy created by him and there is no adverse possession until his death.

Applying the principles which appear to be settled by the cases referred to supra and specially by Dhanushkotirayudu v. Venkayala

Venkatarathnam (1919) 38 M.L.J. 320 the present case can be easily disposed of Joram Bi of course was never Khaji and did not hold the land

by virtue of the Khaji office nor did her husband before her. Joram Bi held possession of the land adversely for over 30 years, and the fact that she

and her husband were members of the Khaji family makes no difference, since only one member of the family could be Khazi and therefore entitled

to the inam lands. Since the partition many years ago the various members have held the various portions allotted to them as separate properties

and therefore adversely to each other. By this adverse possession Joram Bi acquired title to the land and on her death plaintiff became entitled to

half share. I agree with my learned brother that the appeal must therefore be dismissed with costs.