Ponnusami Nadar vs Athi Nadar and Another

Ramaswami, J.—This is an appeal preferred against the decree and judgment of the learned Subordinate Judge, Tirunelveli, in A.S. No. 119

of 1954 confirming the decree and judgment of the learned District Munsif of Srivaikuntam in O.S. No. 389 of 1951.

The suit property is stated to have originally belonged to one Manuel Nadar. This Manuel Nadar had a son by name Gabriel Nadar who sold

the suit property to one Isaac who mortgaged the same to the plaintiff''s father under Exhibit A-4, dated 28th April, 1916. This Exhibit A-4 recites

a sale deed of 10th March, 1916, under which the mortgagor purchased this property and it is also mentioned therein that there are no

encumbrances on the property. On the foot of this mortgage a suit O.S. No. 158 of 1929 on the file of the District Munsif Js Court, Srivaikuntam,

was filed. We have no records concerning this suit but it is stated that in this suit one Athi Nadar''s predecessor-In-title one Vadivelperumal Nadar

claimed paramount title and he was exonerated. Details regarding this are not known except that this paramount title of Vadivelperumal Nadar has

been examined in this suit and found to be totally unfounded.

The plaintiff obtained a mortgage decree in the usual form and brought the property to sale. In that auction sale the plaintiff purchased the

property and the sale certificate issued to him is Exhibit A-5. The plaintiff was not content merely with taking a decree. He started execution

proceedings and under Exhibit A-6 the delivery warrant and attakshi he obtained possession of the suit property. This Exhibit A-6 clearly recites

that the bailiff Ranga Iyengar went to the village, took possession of the suit property from the judgment-debtors and then put the decree-holder in

possession of the property. It may be noted, in passing, that neither Vadivelperumal Nadar nor anybody claiming through him ever objected to this

delivery of possession. On the other hand, it is established by unimpeachable evidence on record that delivery of possession has been given to the

decree-holder auction-purchaser free from all obstruction and from the possession of the judgment-debtors.

This person who was put in possession of the property has also paid kist in respect of the same. Vide Exhibit A-g, dated 10th March, 1941 and

17th February, 1942.

It is in these circumstances that the plaintiff came forward with a suit for a declaration of his title to the suit property and for recovery of

possession of the same with mesne profits from the first defendant who is the last in a long chain of transferees from Vadivelperumal and who had

trespassed into the suit property and had othied a portion of the same in 1951.

The case for the defendants which has been accepted by both the Courts below is that the plaintiff is not entitled to the relief asked for by him

because the defendants had perfect their title to the suit property by adverse possession and limitation and hence the second appeal.

Both the Courts below have made a completely wrong approach to the case. It is quite true that there are two well-settled propositions which

must be complied with by any person seeking ejectment. First of all he must show that he has been in possession of the property within twelve

years prior to the filing of the suit and secondly it must not be proved against him that the defendant had prescribed title by adverse possession and

limitation. In fact both these constitute positive and negative aspects of the same proposition namely, that the person seeking ejectment must be

vigilant over his rights and must not allow his title to get extinguished by the opposite party notoriously and exclusively and hostilely enjoying the

property for over twelve years.

In truth as pointed out by Paton in his Jurisprudence (Oxford University Press)(1946) the whole doctrine like that of prohibiting actions after a

length of time is based on broad views of policy. It is unsettling to allow no time-limit to legal claims and indolence brings its own reward. The small

percentage of cases in which there may be injustice is outweighed by the legal interest in establishing security. So most legal systems, including our

own, recognise that the passing of time may defeat the claims of the indolent. One who has enjoyed long possession does not necessarily possess

the best title but the effect of possible revivals at any time of ''stale'' claims is so unsettling that it militates against an ordered community life. That is

why the Statute of Limitations lays down a time-limit of nearly twelve years. The law while frowning upon trespassers and demanding strict proof

of extinguishment of right of the other by prescription of title by adverse possession and limitation will aid only the vigilant and not the indolent.

A Court of equity said Lord Camden in Smith v. Clary (1767) 3 Bro C.C. 646 ''has always refused its aid to stale demands where the party has

slept upon his right and acquiesced for a great length of time. Nothing can call forth this Gourt into activity but conscience, good faith and

reasonable diligence; where these are wanting the Gourt is passive and does nothing

This refusal to recognise stale claims may take various forms : (a) Firstly there may be limitation of actions which destroys the remedy but leaves

the right subsisting; (b) secondly may destroy the title of the owner by creating, negative or extincting prescription periods of 12 years ; (c) thirdly

there may be acquisitive prescription as in the case of easementary rights. Hence the twin principles set out.

In this case the plaintiff has established that he has been in possession of the property within twelve years prior to his filing of the suit. He has

taken delivery of possession of the property through Court and he has paid kist in regard to that subsequent to his taking possession of the

property. All this happened between 3rd February, 1940 and 17th February, 1942. The suit for declaration and recovery of of possession of suit

property was filed in 1951. Therefore, the plaintiff has shown that he has been in possession of the property within twelve years prior to the filing of

the suit. In these circumstances, I am wholly unable to see any warrant for the unfounded scepticism of both the Courts below in regard to public

records which are maintained with regularity in the ordinary course of routine, they must be presumed to show official acts regularly and correctly

performed until the contrary is proved. Section 114(e) of the Indian Evidence Act, The State of Assam Vs. Keeshab Prasad Singh and Another, ,

Khider Bux v. Emperor AIR 1919 Pat. 404; Mahomed Solelaman v. Kumar Birendra Chandra Singh (1922) 44 M.L.J. 388 : L.R. 50 IndAp 245

: ILR 50 Cal. 243 (P.C.); Niharenddu Dutta Mazumdar and Others Vs. A.E. Porter and Others, ; Anwar Khan Vs. Bhoor Singh and Others, .

See also the exhaustive annotations to Section 114 N. 23 in Corpus Juris of India. The Indian Evidence Act by V. V. Chitaley and Section Appu

Rao (A.I.R. Commentaries (1956) Vol. V. So we have to start with the fact that the plaintiff is entitled to maintain the suit for declaration of his title

to the suit property.

It is for the defendants to establish that they had extinguished the title of the plaintiff to the suit property by their adverse possession and

limitation for over twelve years. In this case whatever might be the claim of Vadivelperumal and his exoneration that possession came to an end as

can be seen from the delivery warrant and attakshi in February, 1940. The bailiff has stated that he took possession of the property from the

judgment-debtors and then put the decree-holder-auction-purchaser in possession of the property. This is confirmed by the fact that kist has been

paid for 1941-1942 after the plaintiff obtained possession of the property. Therefore, any adverse possession pleaded by the defendants must be

only during a period subsequent to the plaintiff''s obtaining possession. In the plaint the plaintiff alleges that he had cultivated disanam crop in Arpisi

1949 (October-November) in the suit land and taken the crops in Thai (January) 1950. There is no warrant for disbelieving this statement. This

also coincides with the opposite party creating an other on 2nd January, 1951. But even assuming that the plaintiff was out of possession till the

date of the filing of his suit twelve years had not been completed on the date of the filing of the suit and therefore it cannot be asserted that the

defendants had perfected their title by adverse possession and limitation. The claim of Vadivelperumal Nadar to paramount title in regard to the suit

property and which has now been found to be untrue is neither here nor there. The defendants can at best claim adverse possession of the suit

property only from 1942 to 1949, and they cannot be permitted to tack on any adverse possession by Vadivelperumal of which we have no

satisfactory evidence whatsoever because none of the records relating to that suit is before us and it had also got terminated in 1940.

The net result of this analysis is that both the Courts below have misdirected themselves that the defendants had perfected their title by adverse

possession and therefore came to the wrong conclusion not borne out by the evidence on record.

In the result the judgment and decree of both the Courts below have got to be set aside and they are hereby set aside and the suit is decreed

for the plaintiff so far as his prayers for declaration of his title to the suit property and recovery of possession of the same are concerned. If the

plaintiff had been more vigilant there would have been no necessity to file any suits and therefore, I do not think it proper that I should give a

decree for mesne profits up to the date of this decree. The plaintiff will be entitled to a decree for mesne profits for the subsequent period and the

enquiry into subsequent mesne profits decreed to the plaintiff and to which he is entitled will be relegated under Order 20, Rule 12 of the CPC to

the trial Court.

This Second Appeal is allowed but in the circumstances of the case without costs.