Moosan Aidravassu vs Appellant v. Mani and Another

Varadaraja Iyeagar, J.—This second appeal is by Defendant 2 in a suit, for recovery of property on the strength of title, which was dismissed by the trial Court but allowed by the lower appellate Court. It has been referred, to a Division Bench because it involved some interesting and difficult questions., (2) The plaint schedule property bears S. No. 301/2C and is 1 acre 4 cents in extent. It lay within the limits of the Edappalli Swaroopam of Defendant 3, Chief, and was registered as puduyal in favour of one Durlabha Das Suit under Ex. C(0) Palta on 1-8-1103. For arrears of tax due under this patta, the property was sold at the instance of Defendant 3 by Government in public auction, on 23-8-1111 under the provisions of the Revenue Recovery Act, 1 of 1068 (Travancore), when the Plaintiff became its purchaser. The plaint averred that the Plaintiff was given delivery of the property in due course under Ex. E Kychit on 29-8-1114 but Defendants 1 and 2 trespassed thereon some time later i.e., on 17-9-1114.

The Plaintiff prosecuted Defendants 1 and 2 for their wrongful act though unsuccessfully and subsequently filed this suit on 23-5-1116 mainly for recovery from Defendants 1, 2 and 4 of the property with arrears of mesne profits, past and future. Alternative relief was also prayed for against Defendant 3, Chief, by way of compensation for the loss incurred by the Plaintiff to the extent of the revenue sale price and also the expenses of the criminal prosecution.

The suit was contested by Defendants 1, 2 and 3. Defendants 1 and 2 raised the contention that the Plaintiff''s predecessor-in-title, Durlabha Das Sait had obtained no real title under and by virtue of the puduval registry from Defendant. 3''s Swaroopam and that the proceeding in revenue auction for purported realisation of the tax dues from the Sait was incompetent and ineffective.

According to these Defendants, the plaint schedule property was not the puduval property of the Swaroopam but pertained to the Ezhiprom Devaswom which was owned by the Swaroopam and that this item along with the adjacent property s. No. 310/2B had been demised as Devaswom property under Ex. H Kanom of 1704, which by successive transfers had vested in Defendant 1 under Ex. TV dated 25-5-1103. Subsequently Defendant 3 had given renewal of the Kanom under Ex. v. in 1105 and" after the coming into force of the Jenmi and Ku-diyan Amendment Act of 1108, Jenmi karan was assessed and payments were made to Defendant 3 for the years 1111 to 1113. Defendant l''s interest in the property was thereafter assigned under Ex. XI of 1115 in favour of Defendant 2 and his wife Defendant 4.

It was claimed further by Defendants 1 and 2 that the title of the Swaroopam or of the Sait or of the Plaintiff must in any event be deemed to be lost by the adverse possession of Defendant 1 and his predecessors-in-interest right from Ex. H Kanom date of 1074 and the suit was therefore not maintainable.

Defendant 3 supported the title of the Plaintiff and specially contended under Ex. v. of 1105 or the levy of jenmi karam on basis thereof had taken place under some mistake but that the Swaroopam or its derivative holders inclusive of the Plaintiff stood unaffected thereby. Defendant 3 also questioned the competency of the Plaintiff to claim alternative relief as prayed for.

The trial Court found that the plaint property was puduval land of Defendant Swarccpam and was validly registered as puduval and equally validly sold in revenue auction. It held however that though Ex. H Kanom deed of 1074 or its successive assignments Exs, L and K, both of 1092, did not include the plaint property, the still later assignment Ex. IV of 1103 in Defendant 1''s favour did include it and that even before such actual inclusion it had been reduced to the possession of the Kanomdar.

In this way possession had come to Defendant 1 .and continued undisturbed with Defendant 1 and after him with Defendant 2 in spite of Ex. B delivery report following the revenue auction in the interval. The Court below held further that this �anterior'' possession commencing, from before the puduval registry and continuing till after the revenue sale and up to date of suit and lasting on the whole for more than 12 years, was capable of investing and did invest in Defendant 2 a title by adverse possession, though subject to the paramount ownership of Defendant 3.

The trial Court accordingly dismissed the suit against Defendants 1, 2 and 4 but it granted to the Plaintiff the alternative relief by way of compensation prayed for in the plaint as against dependant 3 but limited it to the extent of the revenue sale price.

Separate appeals were taken before the District Court by the Plaintiff and by Defendant 3. ''The appeals proceeded on the footing that the trial Court''s finding as to the puduval character of the property and the validity of the puduval registry and the revenue sale, were correct. The only question which, according to that Court, arose for determination was whether Defendants 1 and 2 had perfected their title by adverse possession and this, the Court was satisfied, did not happen.

Defendant 1 or his predecessors had not been in possession for the statutory period before date of the puduval registry. The Defendants could not also tack on the period of their possession prior to the registry to their subsequent possession so as to Create adverse possession against the Plaintiff.

The interval between the dates of the puduval registry and the revenue sale was only just about 8 years, less than the statutory period and such interval, in any event, could not be counted against the revenue auction purchaser. And finally the period between the revenue sale and the suit was only just about 3 years which did not amount to much.

In the light of its conclusion in favour of the Plaintiff on the main relief as above, the grant of alternative relief became unnecessary and the suit was accordingly dismissed as against Defendant 3.

Learned Counsel for the Defendant 2 strenuously contended before us that the Court below had misled itself in considering questions of adverse possession rather than of limitation as in a suit for eviction on the ground of alleged trespass as herein, it lay upon the Plaintiff, to prove that himself or his predecessor-in-title had been in possession within 12 years of the suit and this burden he had failed to discharge. He urged that in view of the finding of fact Defendants 1 and 2 were in possession continuously at any rate from the date of Ex. IV Kanom assignment of 1103 in favour of Defendant, the suit filed in 1.116 more than 12 years later must be held to be barred by limitation under Article 142, Limitation Act. And it was his submission in this connection that the Court below was wrong in its view that the continuity of the adverse possession was effectively broken up by the revenue sale.

Further, according to him, there was enough evidence in the case to hold that Defendant l''s predecessors had been in adverse possession for more than 12 years before the Puduval registry in 1103 in favour of the Sait and even assuming that the possession was only for a lesser period there was no reason why such period should not be tacked on to the subsequent possession after the registry.

Learned Counsel for the Respondent Plaintiff while supporting the findings of the lower appellate Court, suggested that considerations of adverse, possession were possibly inappropriate in the peculiar circumstances of this case.

For according to him, Defendants 1 and 2 or their predecessors had not at any relevant time denied the ultimate title of Defendant l''s Swaropam but were rather acknowledging such title when they claimed derivative title by way of Devaswom Kanom as regards the plaint schedule property as well under Ex. H of 1074 and its later renewals. If the plea was not available against Defendant 3, it could not be urged against the Plaintiff also.

With respect to this suggestion of learned Counsel for Plaintiff we may say at once that the possession of Defendants 1 and 2 and their predecessors cannot on. the facts of this case, be discounted altogether so far as it adverse aspect is concerned. The nature of the rights exercised by the parties and the relationship between them will have to be looked into in order to see whether possession is adverse or not.

A mere possession without a claim or right for however long a time may certainly not be sufficient to create adverse possession. But the matter is different if the possessor sets up a claim or colour or right. The assumption in this case is that Defendant l''s predecessors entered possession of S No. 801/2C under a Kanom from the Devaswom and claimed to be in possession of the plaint schedule property as if under the Kanom deed.

It may be that the Kanom title to plaint property based on the document itself is non-existent. Its possession, nevertheless, was under a claim of title and must accordingly be regarded as adverse. It is the intention of the possessor to claim exclusive title which makes possession adverse and if the claimant''s possession is open and notorious under his claim of title it is sufficient in its character whether the true owner knows the fact or not. As the intention in the case was to claim only the limited interest of a Kanom tenant, possession may be adverse to that extent only.

It is clear therefore that Defendant 3 Swaroopam''s absolute rights in the plaint property in its character as unregistered puduval land was being validly encroached upon by the adverse possession of Defendant

1 and his predecessor, to a limited extent, though it was. How far such adverse possession was effective, as against the Swaroopam''s right to convey title by the puduval registry to Durlabh Das Sait, or as against the sale processes under the Revenue Recovery Act for realisation of rent accrued after the registry, are other questions.

The questions that arise for determination therefore are:

(i) Were Defendant 1 or his predecessors-in-interest in adverse possession before the date of the puduval registry in 1103? If so, for what period and with what effect ?

(ii) Is it open to the Plaintiff, revenue-auction-purchaser to ignore the period of ''adverse possession prior to the revenue sale? and (iii) Whether the suit is barred by limitation.

Taking up the factual aspect covered by the first question we have to mention an argument of learned Counsel for Appellant just to put aside. He said that Defendant 3 had admitted in Ex. v. Kanom renewal of 1105 that Defendant 1 and his predecessors were in continuous possession of the properties denoted therein viz., the sub-number B admittedly demised, as well ay the plaint property under the original Kanom deed Ex. H of 1074 and its .successive assignments Exs. I. and K of 1092 and IV of 1093. But there is only a mere reference to the prior transactions and no admission in any sense as to the inclusion of the plaint property therein.

Learned Counsel referred next to the trial Court''s finding that possession of the plaint property S. No. 301/20 had commenced from even before Ex. IV of Dhanu 1103 and argued there from that the Court must be deemed to have taken the possession back up to Ex. H Kanom deed of 1074. The argument was sought to be reinforced by reference to the boundaries of the property as described in the earlier documents which it was said, take in S. No. 301/2C also. In our opinion the "boundaries do not disclose any such thing.

The trial Court has also definitely found that the plaint property was not only not included in Ex. H Kanom deed but was also not intended to be included and it was only the right to S. No. 301 / 2B which was transferred under Ex. L and later on under Ex. K in 1092 and further it was only When Ex. IV sale deed of 1103 was executed in favour of Defendant 1 that any change was made to creep in. We do not think that the trial Court ever intended to find that there was any possession, in Defendant 1''s predecessors, of the plaint schedule property from the date of Ex.H.

It is probable that the trial Court thought that Defendant l''s transferor might have been in possession so as to be able to convey the plaint item in favour of Defendant 1 when Ex. TV sale was executed. But this will not enable us to fix With precision the exact day when possession commenced with Ex. IV assignor. The burden lay on the defense to make this out. In the absence of any clear or credible evidence on this matter, we hold that the possession of Defendant''s predecessors did not extend beyond the beginning of 1103.

This leads us to the consideration of the legal effect of such possession. Learned Counsel for the special Respondent submitted that the puduval registry in the case in favour of the Sait broke up the continuity of the adverse possession and anyhow it did not matter, since the period of possession previous to registry, as we have found, is only less than 4 months, and referred in this connection to ''Oommen v. Outha'', 57 KER LR 965

The suit therein was filed within 11 years 8 months of the registry of the puduval property involved, in the name of the Plaintiff and the question was whether the Defendant can tack on 4 months of his possession before the registry. There was nothing to show that such possession was hostile or adverse to the possession of then Sirkar, The learned Chief Justice delivering the judgment of the Pull Bench referred to ''Sankaran v. Perumal'', 43 KERLR 225 (B), where it had been held

that possession of Government land is precarious possession and, cannot avail against the person who gets patta from Government for that land

and then continued

The Defendants cannot tack on the period of their possession prior to the registry in favour of Plaintiff to their subsequent possession so as to create adverse possession against the Plaintiff, so (Feb.) 1957 Tra -Co. D.F./2 long as they have failed to show that the period of possession of Government land not hostile or adverse to the Government, becomes adverse against the subsequent registry holder of Sirkar.

Learned Counsel for the special Appellant sought to distinguish the ruling on the ground that it was not Government but Edavagai puduval land which was involved in this case. But this is a distinction without a difference in the light of Sections 2 and 4 of the (Kilimanoor and Edappalli) Estates Rent Recovery Act 4 of 1068 which provided that the registry of lands by Government and Edavagat should be treated alike.

The decision in 57 KERLR 905 will not however apply to this case for another reason. On the facts here Defendant 1 and his predecessor had been in adverse possession of Defendant 3''s Swaroopam anterior to the date of the puduval registry and were not in any sense in "precarious possession" during that period, nor was their subsequent possession shown to be "not hostile or adverse" to the puduval registry-holder.

But in the light of the conclusion, which we are presently arriving at, as to the effective breaking up of adverse possession by the revenue sale in this case, the tacking of the anterior period of 4 months to the later period till date of the revenue sale does not much matter.

We now come to the second question as to whether it is open to the Plaintiff as revenue auction purchaser to ignore the period of possession of Defendant 1 before the date of the revenue sale. Or to put it in other words, is it open to the Defendants to tack on that period with the period thereafter till date of suit and hold forth the total period which obviously is more than 12 years, as constituting a bar to the institution of the suit under Article 142, Limitation Act.

Mr. Rama Shenoi, learned Counsel for Defendant 2 submits that the revenue sale in favour of the Plaintiff does not convey anything more than the right, title and interest of Durlabha Das Sait for whose default in payment of tax the revenue sale was held and if there had been adverse possession as against that Sait to commence with, there was no reason why that adverse possession cannot be said to have continued as against the Plaintiff, who is the successor in interest.

It was with this consciousness, learned Counsel says that the Plaintiff himself had laid his suit for recovery on the basis of an alleged trespass on 17-9-1114 so as to reduce the total period of adverse possession to less than 12 years. He referred in this connection to Section 35, Revenue Recovery Act 1 of 1068 (Travancore) as denoting only

....the lawful succession of such purchaser to all the rights and property of the former land-holder in the said lands.

Section 35, Revenue Recovery Act above referred to indicated only the procedure as to the steps to be taken before issue of the sale certificate to the purchaser. What is the extent of the right which is conferred on the revenue auction purchaser has to be gathered from the substantive provisions of Sections 6 and 8, Estate Rent Recovery Act 4 of 1068.

Section 8 provides that the rents due to the estates (of Edappalli and Kilimanoor) shall be treated as public revenue and all arrears shall be recovered by Government in the manner prescribed in the Revenue Recovery Act 1 of 1068. Section 8 then provides that the sale of land made for arrears of rent, under the authority of the Act shall be "free of encumbrances" if such sale is made to recover the rent due on the lands sold.

Section 39, Revenue Recovery Act, which corresponds to Section 8, Estate Rent Recovery Act uses the expression "free of all encumbrances." But it may be taken that no distinction is meant by the addition of the word "all". There is no doubt that the revenue sale in this case was held for recovering the rent due on the land sold. The question then is whether ''encumbrances'' of which the revenue auction purchaser would be free comprehend the claims developed by the adverse possessor, in the property -possessed.

The question how far adverse possession is an encumbrance u/s 39, Revenue Recovery Act recently came up for judicial consideration in Mytheen Kunju Mytheen Hanifa v. State, 1955 Ker LT 198 Joseph J. delivering the judgment on behalf of the Bench cited and followed the decision in Surja Kanta v. Sarat Chandra Roy AIR 1914 PC 82 (D) where the Judicial Committee had held

that on the failure of an owner to pay the Government assessment, his estate or interest in the land is forfeited, or rather, determined and that under such a sale as that which took place in this case, what was sold was not the interest of the defaulting owner, but the interest of the Crown, subject to the payment of the Government assessment, and that therefore the time limited by the Limitation Act only commenced to run from the date of the sale.

Reference was also made by the learned Judge to The Secretary of State for India in Council Vs. Moulvi Wazed Ali Khan Pani and Others, which had followed the Privy Council decision. aforementioned and Musuzah Bibi v. Brojendra Kishore Roy, 20 Cal LJ 210 : AIR 1914 Cal 606 (F) which was a decision under the corresponding Section 70, Assam Land and Revenue Regulation 1 of 1885 to the effect that adverse possession was an encumbrance contemplated by that section.

The case in 1955 KerLT 198 (C) involved facts more or less similar to the present case. There also was a puduval registry though of Government land in 1100 and a revenue sale for arrears of public revenue due thereon in 1114. Neither the registry holder nor the revenue auction purchaser obtained possession of the property but Plaintiff and his predecessors had been throughout in possession.

It was conceded however that the Plaintiff''s predecessors had not acquired title by prescription on the date of the registry or the revenue sale. The Court held in these circumstances that adverse possession could not be said to have commenced before the date of the revenue sale and as the suit was instituted before the expiry of 12 years from the date of the revenue sale the Plaintiff had not acquired title by adverse possession. We have no hesitation to follow this decision.

The case in Naivarani Matathil Ayya Pattar Vs. Krishnan alias Thondee Karuppasan alias Thondee Punathunnaval and Others, relied on by learned Counsel for the Appellant does not really touch the present question. There, a revenue sale had been directed against a jenmi on account of arrears of revenue and the sale certificate issued to the purchaser did not make any mention of Kanomdar or tenants under Kanomdar.

On the purchaser applying for possession, the tenants claimed the value of the improvements and the Court held that the result of the sale was that the property became free of encumbrances held by the Kanomdar, that is, the sale bound the jenmi and the Kanomdar and not any other person directly.

The tenants holding under the Kanomdar and claiming a right to be paid the value of improvements made by them cannot be held to have encumbrance over the property within the meaning of Section 42, Madras Revenue Recovery Act 2 of 1884 corresponding o Section 39 Of the Travancqre Act 4 of 1068.

The next case in Parthasardhi v. Venkatachalam Pantulu, 1947 2 Mad LJ 387 (H) referred to by learned Counsel is also not really helpful. The question in that case was whether a purchaser in a sale for arrears of land revenue due to Government was not liable to pay kattubadi to the Zamindar because of Section 42 of the Madras Act.

It was claimed by the purchaser that the liability to kattubadi to Zamindar was an encumbrance within the meaning of the section and that as auction purchaser he was then and would be for ever free from such a liability. In rejecting the claim, Bell J. before whom the matter came up In revision, observed:

It is clear that this right is a personal one but not in the sense of a charge or mortgage or similar burden on land. One might say that encumbrances in this regard must be those which arise out of the transactions which are the acts of parties (see Pradyote Kumar Tagore v. Gopi Krishna Mandal, 37 Cal 322

This 37 Cal case (I) was concerned with the scope of the lights obtained by a purchaser at a sale held under Regulation 8 of 1819, which did not define the word "incumbrance" but provided by specific section that sale for arrears of rent was free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives or assignees.

We therefore hold that the Plaintiff gets his title under his revenue sale free from the prescriptive title which had not yet matured but was in course of acquisition by Defendants 1 and 2 by virtue of their adverse possession from the beginning of 1103 till 23-8-llli when the revenue sale took place.

The third question formulated by us, as to whether the suit is barred, may now be said to have practically answered itself. The Plaintiff sues in this case for possession of immovable property both on the ground of his title and on the ground'' of his possession having been disturbed by the Defendant.

Now when the Plaintiff himself alleges (possession and dispossession it may generally be sufficient to bring the case under Article 142, Limitation Act. But the facts may show that there could not have been a dispossession or discontinuance of possession in the sense in which the expression is used in Article 142. In such case Article 144 is applied. See Gaya Prosad Karan and Others Vs. Bakya Mani Dasi and Others,

We have found that the Plaintiff claims under a paramount title not derived from Durlabha Das the defaulter but obtained so to say adversely to him and that Plaintiff had never been in possession after his purchase in 1111. The suit is filed in 1116. It is for Defendants 1 and 2 therefore to show that their possession has been adverse to the Plaintiff for more than 12 years. This, the Defendants have not admittedly shown. In this view of the law the suit of the Plaintiff is not barred by limitation and we hold accordingly.

The decision of the court below granting-the Plaintiff''s prayer for recovery of the property is right and does not call for any interference.

Learned Counsel for the special Appellant submits that in any event the decree for past and future mesne profits as granted by the Court below is unsustainable in the light of its own decision'' that the Plaintiff is not entitled to recover possession of that property without payment of the value of improvements due to Defendant 2 which ha been found by the trial Court to be Rs. 144.

Learned Counsel also submits that there is no warrant for the estimate of mesne profits at 28 paras inasmuch as Ext. I report of the Commissioner mostly proceeded on the basis of the income arising out of improvements effected by the Defendant himself. Learned Counsel for the special Respondent seeks to support the finding of the Court below on the basis that the Defendant''s occupation was wrongful from the date of the revenue auction sale as against the Plaintiff and that there is no reason why he should not be held liable for mesne profits though as a matter of equity the Court below had felt inclined to grant him the value of improvements.

It seems to us however that to the extent the Plaintiff has not objected to the decree of the Court below directing recovery of property conditionally on payment of the value of improvements, he is precluded from requiring any mesne profits till the condition is satisfied and in that view we disallow the mesne profits past and future as granted by the Court below. But we direct that the mesne profits at the rule provided for will be recoverable by the Plaintiff as and from the date of the deposit of the improvement value and notice thereof to the Defendant.

In the result we dismiss the second appeal with costs and we confirm the decree of the lower appellate Court except to the extent it provides for mesne profits, past and future;. The decree to be prepared will however provide for recovery of mesne profits by the Plaintiff from the date of the deposit of the value of improvements and at the rate of 28 paras per year.