Konappa Mudaliar vs Kusalaru alias Munuswami Pillai and Others

Alagiriswami, J.—The plaintiff is the appellant. The suit relates to a house which originally belonged to one Venkatachalam. His son Balu left

the house in 1932 and was thereafter not heard of. Venkatachalarn also died soon after. From the evidence in this case it appears that Balu''s wife

Thirupathiammal, who is the plaintiff''s vendor also left the house at about the same time and went to live with her parents. On 27-4-1945, she

executed a sale in plaintiff''s favour. The first defendant purchased the same property from Chennammal, Venkatachala''s widow on 6-12-1945.

The matter came up once before to this Court, on appeal. The finding of the Courts below that the plaintiff had title to the property was confirmed.

It was remanded to the lower appellate Court for a finding whether the plaintiff was in possession within 12 years of suit. After remand, the''

learned District Judge, Salem, has, after an exhaustive discussions of the evidence on record, came to the conclusion that the plaintiff was not in

possession within 12 years of suit. This finding being one of fact has got to stand. In any case, it is simply supported by the evidence on record.

But the point urged on behalf of the appellant is that the question whether the plaintiff who has title and who sues for possession of the property

to which he is entitled should, in order to succeed in his suit, also show possession within 12 years of suit no longer arises, in view of the provisions

of the Articles 64 and 65 of the Limitation Act, 1963 and as the Supreme Court has in its decision in Nair Service Society Ltd. Vs. Rev. Father

K.C. Alexander and Others, held that the present Articles 64 and 65 are merely declaratory, the matter must be decided on the basis of"" the

present Arts. 64 and 65 rather than under Art 142 as was directed by this Court in its '' order of remand. On the other hand, it is urged on behalf

of the respondents, that the Court below had no jurisdiction to consider any question other than the one it was directed to consider by the order of

remand of this Court and that it was not open to the lower appellate Court to consider whether the matter fell within Arts. 64 and 65 of the present

Limitation Act. In respect of suits filed before the Limitation Act, 1963 came into force, the provisions of that Act have to be given effect to where

fresh steps like appeal etc., have to be taken and not the provisions of the Limitation Act, 1908, subject, of course, to the provisions of Section 30

of the 1963 Act. The provision of Section 30 applies, however, only to suits for which the period of limitation under 1963 Act is shorter than the

period prescribed under the 1908 Act. Therefore, Section 30 of the 1963 Act does not apply to this case. When this suit was filed Article 142

applied.

The effect of the Article 142 of 1908 Act as interpreted by a Full Bench of this Court is that even where a person with a title files a suit for

possession, but fails to show possession within 12 years of suit, he has got to fail, even though the person in possession might not have completed

his title by adverse possession. It is this defect that has been cured by the 1963 Act. Articles 64 and 65 have been interpreted by the Supreme

Court as declaratory and not remedial. The effect, therefore, of the decision of the Supreme Court is that it should always be deemed to have been

the law that when a person who has title sues for possession, need not be in possession within 12 years of suit and he is entitled to succeed unless

the defendant is able to establish that he has prescribed title by adverse possession.

Now in this case, the first defendant''s possession is only from the date of sale, 27-12-1945, and it is less than 12 years. Of course, he can add the

possession of his vendor, to his own possession, provided his vendor''s possession was adverse to the plaintiff''s vendor. From what we have

already stated, it would be obvious that the plaintiff''s vendor had never been in possession though she had title. Can it then be said that the first

defendant''s vendor''s possession was adverse to the plaintiff''s vendor and, therefore, to the plaintiff? The plaintiff''s vendor having left the house as

early as 1932 and come down to the village in 1945 merely for the purpose of executing the sale deed, it is not unreasonable to think that the first

defendant''s vendor was in possession in assertion of title of hers. Even according to the plaintiff''s witnesses, the first defendant''s vendor drove

away, the plaintiff''s vendor within two months of the execution of the sale deed by her in favour of the plaintiff and then executed the sale deed in

favour of the first defendant. The first defendant''s vendor, in view of the fact that her son had left even before her husband''s death and the

plaintiff''s vendor had left the village soon after, should have been in possession in her own right. This was not a case of possession among two co-

owners where it could be said that the possession of one co-owner cannot be adverse to the other co-owner, unless the former''s possession is

openly hostile to the knowledge of the other co-owner. It was a case of a person, who had no title to be in possession, being in possession and

therefore, the defendant''s vendor''s possession must be adverse to the plaintiff''s right from the date of her own possession.

Therefore, even applying the provisions of the Limitation Act of 1963, the defendants should be deemed to have prescribed title by adverse

possession.

The question whether it was open to the lower appellate Court to apply the provisions of the Limitation Act of 1963 notwithstanding the order

of remand directing it to consider the question from the point of view of Article 142 of the Limitation Act 1908 presents no difficulty whatsoever. It

was not open to the lower appellate Court to do anything, but to carry out the terms of the order of remand, which it has done. Even if it

considered that the order of remand made by this Court on the earlier occasion Was not in accordance with law, it was not open to that Court to

apply what it might consider to be the correct provision of law. The decision of the Supreme Court on which reliance is placed for the appellant

was rendered on 12-12-1968. This appeal was disposed of by the lower appellate Court after remand on 26-6-1964. On that date, the only

decision that was binding on the lower appellate Court was the decision of the Full Bench of this Court. Therefore, the decision of the lower

appellate Court was correct on the facts of the case.

But the question still remains whether this Court is at present entitled to take into consideration the later decision of the Supreme Court and go

back on its own earlier order of remand which proceeds on the basis that Article 142 of the Limitation Act of 1908 applies. It is true that against

the order of remand made by this Court on the earlier occasion, no appeal lay. An appeal under the Letters Patent would have been preferred to a

Bench of this Court and an appeal to the Supreme Court would be open only with special leave of the Court. Therefore, this is a case where there

was no appeal open to the plaintiff against this Court''s earlier order of remand. But even so, I do not think it is open to this Court to go back on

the earlier view it had taken. Right or wrong that view has become final. Section 105(2). Civil P. C. provides.

Notwithstanding anything contained in Sub-section (1) where any party aggrieved by an order of remand made after the commencement of this

Code from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

Though, in this case, it is true that an appeal does not lie, it does not mean that the appellant in this case can dispute the correctness of the earlier

order of remand before this very Court. In Smt. Lalbati Kuer Vs. Satchitanand Verma and Others, it was held that if the High Court in second

appeal remands a case to the lower Court the matters finally disposed of by the order of remand cannot be reopened when the case comes back

from the lower Court on the principle of constructive res judicata, To the same effect was the earlier decision of that Court in Sunder Ahir and

Others Vs. Mt. Phuljharia and Another, . See also the decision in Kanhaiya Singh v. Bhagwat Singh, AIR 1954 Pat 326.

In Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , it is observed-

As regards orders of remand it had been held that u/s 591 of the Code, a party aggrieved by an order of remand could object to its validity in an

appeal against the final decree, though he might have appealed against the order u/s 588 and had not done so. The second sub-section of Section

105 precludes an appellant from taking on an appeal from the final decree, any objection that might have been urged by way of appeal from an

order of remand......... if an appeal lay and still the appeal was not taken, the correctness of the order of remand could not be later challenged in an

appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal

from the final decision as in the case of other interlocutory orders.

Now this may apply to a case of an appeal against the judgment of the Court which made the order of remand itself. But it does not lay down that

the Court which made the order of remand can itself reconsider its order of remand and hold that it was not correct. Their Lordships went on

further to say in that case-

There appears to be no reason therefore, why the appellant should be precluded from raising before this Court the question about the applicability

of Section 28 merely because he had not appealed from the High Court''s order of remand, taking the view ,against him that the section was

applicable.

This merely means that the Supreme Court was competent to consider whether the view taken by the High Court in its order of remand was

correct or not, even though an appeal had not been taken against the order of remand. It does not amount to a decision that the High Court itself

would have been competent when the matter came back to it after disposal by the lower appellate Court after remand to take a view contrary to

that it had taken earlier in its order of remand with respect to that point. See Budhilal Deviprasad and Another Vs. Jagannathdas Bajrangdar, . The

decisions referred to earlier also dealt with this question and those decisions have not been in any way overruled by the decision of the Supreme

Court. It should, therefore, be held that it is not open to this Court to go back upon the view it had taken in its earlier order of remand. On this

ground also the appellant has got to fail.

The second appeal is, therefore, dismissed with costs. Leave refused.