Kunda Chenchurama Reddi vs Chintalapalli Ademma

Raghava Rao, J.—The subject-matter of the suit out of which this second appeal arises is an extent of 40 cents of the southern 3 acres, 75

cents, belonging to the plaintiff in S. No. 240 of the Pottempavdu village of the total extent of 4 acres, 75 cents. Alleging trespass on the 40 cents

somewhere about 1938 on the part of the defendant, the owner of S. No. 241 lying to the south of S. No. 240, the plaintiff sued to recover

possession of the 40 cents and mesne profits thereon. According to the plaintiff, it became possible for the defendant to trespass, because he

happened to have become the lessee of the plaintiff''s property under Ex. D-2 for a term of seven years and could abuse his possession as such

lessee so as to annex a portion of the leasehold to his own property. The plaintiff alleged also that out of 3 acres, 75 cents, an extent of 3 acres, 60

cents, was mentioned in Ex. D-2 as the subject-matter of the demise on account of the fraud which the defendant played. In answer to the action

the defendant put the plaintiff to proof of her title and of her possession within 12 years prior to suit and denied the trespass alleged. The learned

District Munsiff of Nellore who tried the suit dismissed it, giving effect to the pleas raised by the defendant. On appeal the learned Subordinate

Judge of Nellore decreed the suit except with reference to an extent of 15 cents. This extent of 15 cents had been decreed to this very plaintiff

against this very defendant in an earlier litigation on 25th August, 1930. But the decree became inexecutable by time-bar, and the defendant

remained in possession of that extent all along. The learned Subordinate Judge therefore held that the plaintiff was disentitled to relief in respect of

that extent, and that in respect of the remainder there was a clear admission of the plaintiff''s title and possession in Ex. D-2 entitling her to a

decree. I may add that the learned Subordinate Judge did not displace the finding recorded by the learned District Munsiff against the case of

trespass in 1938 pleaded by the plaintiff.

Against the decree of the learned Subordinate Judge the defendant has filed this second appeal. There is no question now with reference to the

15 cents. As regards the remaining 25 cents the appellant''s grievance is, firstly, that undue effect has been given by the learned Subordinate Judge

to the recitals of Ex. D-2 about the plaintiff''s title and possession, and secondly, that irrespective of the defendant''s proof or failure of proof of his

own adverse possession the plaintiff was bound to fail for want of proof of her possession within 12 years prior to suit under Article 142 of the

Limitation Act, even assuming the trespass of 1938 alleged by the plaintiff to be true.

The further admitted facts of the case which I need mention are these. The plaintiff executed a deed of trust in 1928 in favour of certain third

parties in respect of her entire 3 acres, 75 cents in S. No. 240. Those parties remained in possession thereof after the plaintiff''s execution of the

trust deed till the plaintiff who repudiated the trust later became eventually entitled to possession as against them by virtue of the decree passed in

her favour in O.S. No. 156 of 1940 on the file of the Court of the District Munsiff of Nellore. The result was that, notwithstanding the recitals of

Ex. D-2 abovementioned, the parties in possession at the time of Ex. D-2 being the trustees there was no possession got by the defendant from the

plaintiff pursuant thereto, because there was no possession with her to be given by her to the defendant.

The recitals of Ex. D-2 being therefore false, I am of opinion with reference to the first contention of the appellant that they were wrongly used

by the learned Subordinate Judge against the defendant as negativing his adverse possession Being false, they cannot, I think, be used whether for

negativing adverse possession of the defendant or for finding the plaintiff''s possession within the statutory period. With reference to the second

contention of the appellant, in order to escape the bar of Article 142 of the Indian Limitation Act which would prima facie cover a case like the

present under the Full Bench ruling of this Court reported in The Official Receiver of East Godavari Vs. Chava Govindaraju and Another, , Mr.

Umamaheswaram, the learned advocate for the respondent, attempted many lines of argument before me. He contended in the first instance, rather

boldly that the plaintiff must be taken to have proved her possession within 12 years prior to suit, because the possession of the trustees was in law

hers. That, in my opinion, is absolutely and obviously impossible. The trustees were in possession in their own right and adversely to the plaintiff

and not. on behalf of the plaintiff, so much so that in fact the plaintiff had to file her suit, O.S. No. 156 of 1940, in order to evict them from the

property in question.

The learned advocate next contended that if during the wrongful possession of one trespasser the true owner filed a suit and obtained a decree

against him, any dispossession of that trespasser by another trespasser during the pendency of the suit would be unavailing against the plaintiff suing

the later trespasser within 12 years of the decree. The argument was that the decree obtained by the true owner against the first trespasser would

operate proprio vigore to give back possession in the eye of law to the true owner which, if proved to be within 12 years prior to the suit against

the later trespasser, would save such a suit from the bar of limitation under Article 142. In support of this contention the learned advocate relied

principally on the statement of law to be found at page 1706 of the 6th edition of Mitra''s Commentary on the Indian Limitation Act and the case in

Ram Kishore Gangopadhya v. Bandikaratan Tewari Ghowdhry ILR (1886) Cal. 203, cited in the foot-note in support thereof. My attention was

also drawn in this connection to the decision of the Privy Council reported in Agency Co. v. Short (1888) 13 A.C. 793, as showing that in cases

of successive trespassers limitation ceases to run against the lawful owner of land after the intruder has relinquished his possession. Reference was

also made to the observations of the learned Judges in Janakinata Saha v. Baikunthanath Chattik (1922) 70 I.C. 602, to the effect that,

When the possession passes from the first to the second trespasser, there is a constructive restoration, even if a momentary restoration, of the true

title to possession.

It is unnecessary for me to deal with this line of argument of counsel for the respondent any further than to say that it can have no application to

the facts of the case before me. Here no dispossession of the first trespasser by the second, that is, by the defendant in the present suit, took place

during the pendency of a suit by the true owner against the former. The suit against the first trespasser (O.S. No. 156 of 1940) was in the present

casein fact only subsequent to the alleged trespass of 1938 by the second and not prior. Nor is there any room in the circumstances of the present

case for the inference of a relinquishment of possession by the first intruder or for the application of any principle of constructive restoration of

possession to the true owner.

The next argument submitted by the learned advocate was based upon Heaton J. ''s statement of the law in the last paragraph of his judgment in

Vasudeo Atmaram Joshi v. Eknath Balkrishna Thite ILR (1910) 35 Bom. 79. But it must be pointed out, in regard to one part of that statement,

viz., that Article 142 has no application to claims which neither in terms nor in substance are claims to possession, made necessary by reason of

dispossession or discontinuance of possession, that although that part of the statement of the law has been adopted by Madhavan Nair, J., sitting

as a single Judge in Periaya Jeeyangarasami v. Esoof Sahib,(1924) 21 L.W. 398 it cannot be regarded as good law after the Full Bench ruling of

this Court in The Official Receiver of East Godavari Vs. Chava Govindaraju and Another, . The decision of the Full Bench has in terms overruled

Periya Jeeyangarasami v. Esoof Sahib (1924) 21 L.W. 398, and laid down clearly and categorically that in suits for ejectment, against a person in

occupation of Immovable property, the plaintiff cannot rest his case on title alone, and that Article 142 applies to such suit so as to make it

incumbent upon the plaintiff to prove that he has exercised acts of ownership by being in possession within 12 years of suit. Nor am I satisfied that

the other part of Heaton, J.''s statement of the law is any the sounder. Says the learned Judge:

It was indeed urged that it is a general principle that anyone suing in ejectment must prove possession within 12 years and the authorities seem to

bear out that contention but the reason for this is that possession is commonly the effective assertion of title which is relied on and the cases

accordingly deal with that particular kind of assertion of title. But it is not the only one; there is. another which in some cases is equally good; and

that is an assertion of title made in Court and established by a decree. That is good against those who are party defendants to the suit, and if the

same title is re-asserted and made good, as here in a later suit against other opposing parties, it is good against them also, and entitles to

possession whether the title-claimant has or has not been in possession within 13 years; unless the opponent can defeat the title by adverse

possession. There is no such defect in this case.

That a declaratory decree pure and simpliciter cannot stop the running of time by adverse possession under Article 144 has been ruled by the

decision of the High Court of Madras in Singaravelu Mudaliar Vs. Chokka Mudaliar (alias) Chokkalinga Mudaliar, , and that of the Privy Council

in Subbaya Pandaram v. Muhammad Mustapha Maracayar (1923) 45 M.L.J. 588 : L.R. 50 IndAp 295 : ILR 46 Mad. 751 (P.C.). It is difficult,

then, to see how on principle such a decree or even a decree for possession not effectively executed can satisfy the requirement of proof of

possession within 12 years of suit which is laid down by Article 142.

The last line of argument advanced before me for the respondent is founded on decisions of the kind illustrated by Ram Lakhan Bai v. Gajadhar

Rai ILR (1910) All. 224, and Paluru Ademma Vs. Achala Penchelu Reddi, , on the one hand and Secretary of State for India in Council v.

Debendra Lal Khan (1933) 66 M.L.J. 134 : L.R. 61 IndAp 78 : ILR 61 Cal. 262 (P.C.), on the other, which are cases mutually converse and go

to show that in cases under Article 144 there can be no tacking on of adverse possession on the part of successive independent trespassers while

in the case of successive trespassers in privity with each other or one another there can be such tacking on. But these decisions, it need hardly be

observed, are thoroughly irrelevant to a case like the present governed by Article 142.

None of the lines of argument submitted for the respondent is consequently of any avail to him. The case is, in my opinion, governed by the

ruling in Ramayya v. Kotamma (1921) 42 M.L.J. 319 : ILR 45 Mad. 370 that,

Adverse enjoyment of Immovable property for over 12 years, whether by a single person or by several persons in succession, even though they do

not claim from one another, provided it is continuous and without a break bars the true owner under Article 142 of the Limitation Act.

That ruling, with which I respectfully agree, notwithstanding the doubt expressed by a single Judge of this Court, Chandrasekhara Aiyar, J., in

Paluru Ademma Vs. Achala Penchelu Reddi, , is based on the sound and sensible observations of Kay, L.J., in Willis v. Earl Howe (1893) 2 Ch.

545 that if the contrary were the correct view of the law, the effect would be that if a series of occupiers, not claiming under one another, kept out

the real owner, say, for 100 years, time would run against him only from the moment when the last of such occupiers entered into possession. In

any case, that ruling is binding on me sitting as a single Judge and concludes the present case against the respondent. Reference may in this

connection be made also to the statement of the law to be found in Chitale''s Commentaries on the Indian Limitation Act, 2nd edition, page 2395,

to which my attention has been drawn by Mr. Sivaprasada Rao for the appellant. In the result the second appeal succeeds and I allow it. The

decree of the learned Subordinate Jude is set aside, and the decree of the learned District Munsiff is restored with costs to the defendant

throughout. (No leave).