Sri Padma Kumari Patto Mahadevi vs Nanda Padhan and Another

Meredith, J.—These are two appeals by plaintiff in two rent suits from a decision of the learned District Judge of Ganjam-Puri, dated 2nd July 1937, confirming a decision of the learned Deputy Collector of Ghumsur, dated 21st October 1936.

The appellant brought these suits u/s 77, Madras Estates Land Act, for recovery of rent for Faslis 1342 and 1343. She was met with a plea of eviction by title paramount, which succeeded before both the Courts below. The appellant is the widow of one Puru-shottam Deo, who for some years prior to 1915, in which year he died, was in possession of the Sannokhimedi estate, which is an impartible estate. Shortly before his death, he made an assignment of the right to collect the rent of the villages in suit and some other villages in favour of the appellant as a jagir. Thereupon the appellant came into possession and. for a number of years continued to collect the rent. The former zamindar of the estate died in the year 1906, leaving a minor son. The appellant''s husband however succeeded in obtaining possession of the estate ignoring the claim of the son on the ground that he was illegitimate. The appellant''s husband succeeded in getting himself registered in the revenue accounts by the Collector as the zamindar.

After his death, his brother obtained possession of the estate. During this period some claims were instituted by other claimants contesting the right of the appellant''s husband and brother, but the son of the former zamindar did nothing during his minority. He attained majority in the year 1919, and then he instituted a suit in the local subordinate Court for recovery of possession of the estate on the ground that he was the legitimate son of the previous holder. He succeeded in the subordinate Court, lost his case in the Madras High Court, but eventually succeeded in November 1932 before the Privy Council, when the judgment of the subordinate Court of Berhampore declaring him entitled to possession was restored. This decree was put into execution, and the claimant came into possession of the estate.

The plea of the tenant defendants in the suits which are before us was that after the Privy Council decision they had attorned to the successful claimant, and had paid the rents for the years in suit to him. On this ground they claimed that there had been eviction of the appellant by title paramount, and she was no longer entitled to recover the rent. This plea, as I have said, succeeded. The Courts below held that the estate being impartible at best the appellant''s husband could transfer an interest for his own lifetime; nor, they considered, could the plaintiff claim any title by adverse possession, because her possession could not be said to have become adverse to the claimant until the date of the Privy Council decision in 1932.

In my opinion, no question of what rights of alienation or transfer exist in impartible estates arises in this case, as the transfer to the appellant was by a trespasser, and not by the proprietor of such an estate. Secondly, even if it be conceded that tenants, who are threatened by a successful claimant and on that account attorn to him by paying him rent, can say that this amounts to eviction by title paramount and can set this up by way of defence in an action for rent, the success of that defence must depend on the tenants proving the title of the evictor, that is to say, on their proving in the present cases that the claimant referred to in the judgments of the Courts below as the present zamindar but who, we understand, is since deceased, has a good title as against the appellant.

In my opinion, the respondents have not succeeded in establishing the evictor''s title, and I consider that the Courts below were wrong in holding that the possession of the appellant only became adverse from the date of the Privy Council decision. In my view, it was clearly adverse right from the time when the appellant came into possession, and certainly from the time of the death of the appellant''s husband. Both, the gift to the appellant and her husband''s death took place in the year 1915. The appellant admittedly continued in possession at least until the year 1932. If this possession was adverse, any claim by the deceased zamindar against; the appellant would be barred by limitation. His minority could make no difference since he attained majority in the year 1919. u/s 8, Limitation Act, such a disability cannot extend limitation for a period more than three years after its cessation.

In Sankaran v. Periasami (90) 13 Mad. 467 it was laid down that where a person is in wrongful possession of portion of an estate time will begin to run from the date when the adverse possession begins irrespective of whether the rightful owner is in possession of the estate or not. It will not merely run from the time when the rightful owner may succeed in recovering the estate. The possession will be deemed to be adverse against the rightful owner of the estate whoever he may eventually turn out to be. On this principle, time in the case of the appellant''s possession would run from the year 1915 as against the minor.

In Mahendro Nath v. Nafur Chander (78) 1 C.L.R. 531 a somewhat similar principle was laid down. A took and held possession of land adversely to B, and afterwards let it in patni to C. B brought a suit for possession against A; and, having obtained a decree, attempted to execute it by turning G out of possession. Between the date on which A originally took adverse possession of the land and the date on which B attempted to turn C out of possession, more than twelve years had elapsed. In these circumstances it was held that B''s claim against c was barred by limitation; and that C was not bound by the decree obtained by B against A, not having been made a party to the suit. Similarly, in the suit by the deceased zamindar to recover possession after attaining his majority the present appellant was not made a party.

A case which is also relevant upon this point is Sham Koer v. Dah Koer (02) 29 Cal. 664. The facts of that case were that on the death in 1862 of a member of an undivided Hindu family governed by the Mitakshara law, his widow and his son''s widow obtained possession of a portion of his property, which they in 1884 assigned by hibanama to a third person. In 1891 the reversionary heirs brought a suit against the survivor of the widows and her assignee to set aside the hibanama and for possession. Their Lordships of the Privy Council held that the widows being entitled only to maintenance out of the estate, their possession was adverse to the plaintiffs, unless they could show that it was as the result of an arrangement with them. Their adverse possession having continued for more than 12 years, the suit was held to be barred by limitation.

There is another ground upon which it must be held that the possession of the appellant was in any case adverse to the rightful owner. It is that the gift of this property to the appellant was not by a registered instrument. The gift was therefore not valid. The appellant hold not under any deed of gift, but in a sense adversely even to the donor, and therefore all the more so adversely to the rightful owner.

In a somewhat similar case of an invalid gift, Varada Pillai v. Jeevarathnammal AIR 1919 P.C. 44 their Lordships of the Privy Council having held that the gift was invalid as not being made by a registered deed as required by Section 123, T.P. Act, held that though the recitals in the petitions could not be used as evidence of the gift, they might be referred to as explaining the nature and character of the possession thenceforth held by the donee and such evidence, they said, in the case before them, proved that she in fact took possession in her own right when the property was transferred into her name, and retained possession until the plaintiffs'' claim was barred by more than 12 years'' adverse possession. That is to say, she held adversely even against the donor. For the respondents it is contended that Purushottam Deo was not an ordinary trespasser. He held possession of the estate as claimant to an impartible estate, and so he prescribed only towards the title of the holder of an impartible estate. Therefore the alienation by him u/s 4, Impartible Estates Act, would be valid for his own life. The fallacy in this argument lies in the fact that Purushottam Deo never acquired any title at all. His occupation never ripened into anything more than the possession of a trespasser. Any alienation by him could not be governed by the Impartible Estates Act.

Secondly, it is argued that, whether rightly or wrongly, the zamindar did succeed in ousting the appellant after 1932 by realization of the rents from the tenants. In my view that contention also is unsound. It could not be said that the appellant who had been realizing the rents for many years had been ousted, either rightly or wrongly, unless and until a claim of hers for recovery of rent had failed. She could assert her possession only by recovery of rent, and until she had failed to recover rent, it could not be said that she had been ousted from possession.

It is argued that Purushottam Deo and afterwards his brother had some interest in the impartible estate, and as such they could transfer some interest to the appellant who would not therefore be in adverse possession. The contention that a person who has no right at all to present possession can make any valid transfer appears to me also incorrect. Lastly, it is said that the gift to the appellant was merely of a personal right to collect rents, and not a transfer of an interest in property.

It was the sort of right contemplated by Section 6(d), T.P. Act, and in the case of such a right there can be no prescription. For this proposition reliance is placed on a decision of their Lordships of the Privy Council in AIR 1939 157 (Privy Council) . In that case however their Lordships came to a definite finding that the right in question was merely a personal right, and not even a life interest in immovable property. The interest transferred to the appellant in the present case was, in my opinion, a different one. It was a sort of jagir, and was an interest in immovable property. There is therefore no reason why the appellant should not successfully establish title by prescription and adverse possession. In my view, the defendants did not succeed in establishing their plea of eviction by title paramount. The case was disposed of by the Courts below upon the decision of issues 1, 2 and 4:

Whether there is any relationship of landlord and raiyat between the plaintiff and the defendant? Whether the plaintiff has title to the suit villages and can maintain the suit? Whether the discharge pleaded is true and binding on the plaintiff?

These issues were decided in favour of the defendants, and the suit was dismissed, leaving the remaining issues undecided. As I hold that issues 1, 2 and 4 should have been decided in favour of the plaintiff, the suits will have to go back to the Court of first instance for decision of the remaining issues: Issue 3 : "Whether the plaint schedule is correct? and issue 5 : "To what rent, if any, is the plaintiff entitled?"

I would therefore allow these appeal''s with costs. I would set aside the dismissal of these suits, and remand them to the Court of first in-stance for decision of the remaining issues and for disposal in accordance with law. The appellant will get her costs also in the Court of the learned District Judge. Costs in the Court of first instance will abide the final result.

Harries C.J.

I agree.