The Official Receiver of East Godavari vs Chava Govindaraju and Another

Alfred Henry Lionel Leach, C.J.—The appellant is the Official Receiver of East Godavari and he has filed this appeal as the representative

of the estate of one Adusumilli Venkatasubbarayudu, who was adjudicated an insolvent during the pendency of the suit out of which this appeal

arises. The insolvent was the plaintiff in the suit. On the 29th November, 1911, the second respondent and his sons mortgaged certain land

belonging to them and in 1922 the mortgagees filed a suit in the Court of the District Judge of Rajahmundry to enforce the mortgage. They

obtained a decree which they assigned to the plaintiff, who caused the land to be put up for sale in execution proceedings. The plaintiff bought the

land at the Court auction and in due course obtained a sale certificate. When he went to take possession of the property he was obstructed by the

first respondent, who claimed it as his ancestral property. Thereupon the plaintiff applied to the Court for an order under Order 21, Rule 98 of the

Code of Civil Procedure. His application was dismissed and consequently he filed in the Court of the District Munsif, Rajahmundry, a suit for a

decree declaring his title to the property and for the ejectment of the first respondent therefrom. In his plaint he averred that in 1909 the second

respondent, on being appointed a village munsif, entrusted the property to the first respondent, his nephew, who was to manage it for him. With the

dishonest idea of defeating the mortgage the second respondent had, it was said, instigated the first respondent to claim the property as his own. In

addition to claiming the land as his ancestral property the first respondent averred that he had title to it by adverse possession. The District Munsif

found for the plaintiff on all the issues and consequently decreed the suit. The first respondent then appealed to the Court of the Subordinate Judge

of Rajahmundry. The Subordinate Judge held that the land was not the ancestral property of the first respondent, but belonged to the second

respondent and his family. He disagreed with the District Munsif, however, on the question whether the land had been entrusted to the first

respondent. In his opinion this had not been proved, but without considering the question whether the first respondent had been in adverse

possession for twelve years he allowed the appeal on the ground that possession had been with the first respondent, since that date. The question

which the court is called upon to decide is whether Article 142 or Article 144 of the Limitation Act applies to this case. The appellant contends

that Article 144 applies. The, first respondent would have it that the proper article is Article 142. That the first respondent has been in possession

since 1909 is admitted and it is conceded by both sides that if Article 142 applies the appeal must fail. It is also conceded that if Article 144

applies the suit must be remanded to the Subordinate Judge to consider whether the evidence justifies the first respondent''s contention that he has

obtained a title by adverse possession.

Article 142 prescribes a period of limitation of twelve years for a suit for possession of immovable property when the plaintiff, while in

possession of the property has been dispossessed or has discontinued the possession. The period of twelve years runs from the date of

dispossession or discontinuance. Article 144 prescribes the same period of limitation for a suit ""for possession of immovable property or any

interest therein not hereby otherwise specially provided for"". The period commences when the possession of the defendant becomes adverse to the

plaintiff. Articles 134, 134-B, 135, 136, 137, 138, 139, 140, 141 and 143 also deal with suits for possession of immovable property. Article 144

is a residuary article and therefore can only be applied if a suit does not fall within any of the earlier articles. There has been much discussion in the

Courts of India with regard to the application of Articles 142 and 144. If a suit falls within Articles 142 the plaintiff must show that he has been in

possession within twelve years of the suit. When Article 144 applies the burden of proving adverse possession for this period is upon the

defendant.

A discussion of the reported cases relating to Articles 142 and 144 would be a most formidable task and in my opinion it is not necessary to

undertake it. I consider that the Privy Council has indicated the application of these articles in (1889) ILR 16 473 (Privy Council) , the plaintiffs

had proved that formerly they were the proprietors of the land to which they alleged title, and from which they claimed to oust the defendants.

They had, however, been dispossessed, or their possession Had been discontinued,, some years before the suit was brought by them and the land

was occupied by the defendants, who denied their title. The Judicial Committee held that in these circumstances the burden was on the claimants to

prove their possession at some time within the twelve years next preceding the suit. It was not sufficient for them to show an anterior title without

proof of their possession within twelve years to shift the burden on the defendants of showing that they were entitled to remain in possession. In the

judgment under appeal the Subordinate Judge who tried the case observed:

When I showed above that the plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to

retain possession of these lands.

Their Lordships comment on this observation was this:

That, as a proposition of law, is one which hardly meets with the approval of their Lordships.

Their Lordships went on to say:

This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the defendants are admittedly in

possession and a fortiori where, as in this particular case, they had been in possession for a great number of years, and under a claim of title, it lies

upon the plaintiff, to prove his own title. The plaintiff must recover by the strength of his own title, and it is the Opinion of their Lordships that, in

this case, the onuses thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some

time within twelve years before the commencement of the suit, namely, for the two or three years prior to the year 1875, or 1874, and that it does

not lie upon the defendants to show that in fact the plaintiffs were so dispossessed.

In (1889) L.R. 16 I.A. 148 (Privy Council) , the Privy Council pointed out that Article 144 only gives the rule of limitation where there is no

other article in the schedule specially providing for the case. Although the proprietary right would continue to exist until, by the operation of the law

of limitation, it has become extinguished, where a claim comes within the terms of Article 142, adverse possession is not required to be proved in

order to maintain a defence. The plaintiffs'' ancestors at the settlement in the Delhi District in 1843, declined to pay revenue in respect of a plot of

land which had been held under rent-free tenure and had been resumed in 1838. The land was nevertheless assessed and the Government made an

engagement with the villagers (the defendants in the suit) under which the villagers were to be put into possession. A revision of the settlement took

place some thirty years later and the plaintiffs claimed possession on the strength of their title. According to the judgment under appeal to the Privy

Council the plaintiffs were undoubtedly the proprietors before 1838, but the laud had been since 1842 in the possession of the defendants, who

had exercised all the rights of proprietors. There was no possession of any description in the plaintiffs or their ancestors since the period of the

engagement, and under those circumstances the Judicial Committee held that whether any proprietary right existed did not matter. The question

was whether there was a dispossession or discontinuance, and clearly there was. The proprietary right would undoubtedly continue to exist until by

the operation of the law of limitation it had been extinguished; but upon the question whether the law of limitation applied, it appeared to be clear

that the case came within the terms of Article 142. Therefore it was unnecessary to embark upon an inquiry whether there had been adverse

possession.

The decision in Dharani Kanta Lahiri v. Garbar Ali Khan (1912) 25 M.L.J. 95 was to the same effect. The suit was one for ejectment of

persons who admittedly were at the date of suit in possession of the land. Their Lordships said:

It lay upon the plaintiffs to prove not only a title as against the defendants to the possession, but to prove that the plaintiffs had been dispossessed

or had discontinued to be in possession of the lands within twelve years immediately preceding the commencement of the suit. Their Lordships find

that the plaintiffs failed to prove a title against the defendants to the possession of the lands in dispute or any part of them; they failed to prove that

the lands, the possession of which they claimed, were not the Ian4s covered by the sanad; and they failed to prove that they had been

dispossessed or that their possession had been discontinued within twelve years before suit.

In view of these decisions of the Privy Council it cannot in my judgment be maintained that a person who proves title in a suit for ejectment has

the right to the decree sought unless the defendant proves adverse possession for twelve years. The plaintiff is not entitled to succeed unless he

shows in addition to title, that he has been in possession of the property within twelve years of the suit. The Privy Council has declared that to be

the effect of the Article 142 and that suits for ejectment come within that article. It may be a hardship that a person who proves a title to property

should lose it to a trespasser unless he can also show that he has been in possession within twelve years of suit, but that is what the Limitation Act

says and the Court must administer the law. And drafting his plaint in a manner which disguises the real nature of the suit will not help a plaintiff. In

Gopal Chunder Chakerbutty v. Nilmony Mitter I.L.R.(1884)Cal. 374, Garth, C.J., pointed out a mere allegation of a tenancy will not relieve a

plaintiff from the burden of proving that he or those under whom he claims had been in possession within twelve years. If it did that device might

always be resorted to for the purpose of evading the law of limitation.

I will now proceed to examine the decisions of this Court to which reference has been made in the course of the arguments. The first decision is

that of Ayling and Venkatasubba Rao, JJ., in Tanjore Palace Estate by its Receiver, Sundaram Aiyar v. Thiyagaraja Pillai (1922) 50 M.L.J. 183.

A mortgagee filed a suit to enforce a mortgage created in 1897 and obtained a decree for sale. At the auction sale held on the 5th September,

1905, the mortgagee purchased the property and obtained symbolical ''possession. A third party was in possession and the mortgagee did not

institute a suit to recover possession until 4th September, 1918. The defendant who had been in possession from 22nd May, 1905, then claimed

he had been in adverse possession for more than twelve years. The Court held that the possession of the defendant though adverse to the

mortgagor did not affect the rights of the mortgagee or of the auction purchaser and consequently the suit was not time barred. This principle had

been settled by a Full Bench of this Court (Wallis, C.J. and Sadasiva Aiyar and Srinivasa Aiyangar, JJ.) in Vyapuri v. Sonamma Bai Ammani

(1914) 29 M.L.J. 645 : ILR 39 Mad. 811 , where it was held that the possession of a trespasser who has dispossessed a mortgagor, the

mortgage being a simple one within the meaning of the Transfer of Property Act, is not adverse to the mortgagee. In the present case dispossession

took place before the mortgage was created and therefore it differs materially from that decided by Ayling and Venkatasubba Rao, JJ. The learned

Judges went on to express the opinion that Article 142 does not apply

when upon the facts proved or admitted, dispossession cannot possibly have occurred before 12 years of the institution of the suit.

and to observe that:

The plaintiff is entitled to say that the allegation relating to his possession may be treated as superfluous and that he may be allowed to rest his case

upon the footing that his suit is within 12 years of the accrual of his right.

Madhavan Nair, J., discussed the applicability of Articles 142 and 144 in Periya Jeeyangarswami v. Mahomed Esoof Sahib (1924) 21 L.W.

In that case a suit was brought by a dharmakarta of a devasthanam for possession of land which the devasthanam alleged had been leased to

the defendants. The District Munsif who tried the suit found for the plaintiff, but his decision was reversed on appeal by the Subordinate Judge,

who held that the alleged lease had not been proved and that Article 142 applied. As the plaintiffs had failed to prove possession within twelve

years of suit the Subordinate Judge allowed the appeal. On second appeal Madhavan Nair, J., held that the proper article to apply was Article

144 and based his opinion on the judgments of the Privy Council in the Secretary of State for India v. Chellikani Rama Rao (1916) 31 M.L.J. 324

: L.R. 43 IndAp 192 : ILR 39 Mad. 617 and in Kuthali Moothavar v. Peringati Kunharankutty (1921) 41 M.L.J. 650 : L.R. 48 IndAp 395 : ILR

44 Mad. 883 and of that of the Allahabad High Court in Jai Chand Bahadur v. Girwar Singh ILR (1919) All. 669.

In the Secretary of State for India v. Chellikani Rama Rao (1916) 31 M.L.J. 324 : L.R. 43 IndAp 192 : ILR 39 Mad. 617 , the question was

whether the Secretary of State in Council was entitled to incorporate into a reserved forest under the Madras Forest Act (V of 1882) certain

islands which had been formed on the bed of the sea near the mouth of the river Godavari within three miles of the mainland. It was held that the

islands belonged to the Crown and that the claimants had not proved adverse possession for a period sufficient to establish a right against the

Crown. In the course of their judgment^ their Lordships said:

Nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the

person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the

possessor for a year or a day to say, ''I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated

that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions.'' Such a singular doctrine can be well

illustrated by the case of India, in which the right of the Crown to vast tracts of territory, including not only islands arising from the sea, but great

space of jungle lands, necessarily not under the close supervision of Government officers, would disappear because there would be no evidence

available to establish the state of possession for sixty years past. It would be contrary to all legal principles thus to permit the squatter to put the

owner of the fundamental right to a negative proof upon the point of possession.

In Kuthali Moothavar v. Peringati Kunharankutty (1921) 41 M.L.J. 650 : L.R. 48 IndAp 395 : ILR 44 Mad. 883 , the Judicial Committee

observed:

Standing a title in ''A'' the alleged adverse possession of ''B'', must have all the qualities of adequacy, continuity and exclusiveness which should

qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor. Accordingly when the holder of title

proves, as in their Lordships'' view he does with some fulness prove in the present case, that he too has been exercising during the currency of his

title various acts of possession, then the quality of these acts, even although they might have failed to constitute adverse possession as against

another, maybe abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person

challenging by possession the title which he holds.

I do not regard these pronouncements of the Privy Council as deciding the question of the effect of Article 142. I regard them as laying down

principles which have to be applied when the issue is confined merely to a plea of adverse possession in, particular circumstances. As I have

already pointed out the Privy Council had dealt with the application of Article 142 in (1889) ILR 16 473 (Privy Council) , which Madhavan Nair,

J., did not consider.

The Allahabad High Court in Jai Chand Bahadur v. Girdar Singh I.L.R.(1919)All. 669, expressed the opinion that it was sufficient for the

plaintiff in an ejectment suit to rest his case on title. There the plaintiff, who was a Zamindar, sued to eject the defendant from certain land which he

alleged the defendant was in possession of as his licensee. The defendant denied the license and. set up a claim of adverse possession. The claim of

adverse possession failed and the Court held that the plaintiff was entitled to succeed on the title which he had proved as Zamindar. The question

whether the license was ever granted or revoked was. immaterial. This decision appears to be in direct conflict with the pronouncements of the

Privy Council to which I referred at the outset.

The next decision of this Court is that of Phillips, J., in Kuppuswami Mudaliar Vs. Chockalinga Mudaliar, . It was argued there that Article 142

has no application to a suit for possession based on title but having considered the decisions in (1889) ILR 16 473 (Privy Council) , Phillips, J.,

rejected this argument.

In Ramanujachariar v. Sundarachariar (1927) 25 L.W. 127, Devadoss and Wallace, JJ., held that Article 142 is applicable only to cases

where the plaintiff alleges possession and dispossession in his plaint. They considered that notwithstanding that the plaintiff sets up a tenancy or

license as the basis of the defendant''s possession the article applicable is still Article 144. The learned Judges did not however consider any of the

authorities.

The latest decision of this Court is that of Venkatasubba Rao and Abdur Rahman, JJ., in Alam Khan Sahib Vs. A.L.M. Karuppannaswami

Nadan and Others, . In that case the plaintiff was a mutawalli of a Mohammadan trust. He sued for possession of immovable property and alleged

that the defendants had been his tenants. It was held that the tenancy was not proved. The defendants did not appear at the trial, but the plaintiff''s

witnesses themselves stated that the property had never to their knowledge been in the possession of the plaintiff. It was held that the suit was

governed by Article 142 and not by Article 144 and that it should be dismissed as the plaintiff had not proved his possession within the statutory

period. The learned Judges, however, considered that on the facts of the case it was unnecessary to deal with the broad question whether in a suit

in ejectment where the plaintiff''s title is proved there rests any duty upon him of shifting the burden on the defendants to prove adverse possession

under Article 144.

I have said sufficient to indicate that in my opinion a plaintiff who is suing for possession of property in the occupation of another cannot rest his

case on title alone. He must show that he has exercised rights of ownership by being in possession within twelve years of suit. It follows that in my

opinion the observations which I have quoted from the judgment in Tanjore Palace Estate by its Receiver Sundaram Aiyar v. Thiagaraja Pillai

(1922) 50 M.L.J. 183, cannot be accepted and that Periya Jeeyangarswami v. Mahomed Esoof Sahib (1924) 21 L.W. 398 and Ramannjachariar

y. Sundarachariar (1927) 25 L.W. 127 were wrongly decided.

In the present case the appellant and his predecessors in title have admittedly been out of possession since 1909 and this disposes of the

appeal, but before I conclude it is necessary to deal with another argument advanced on behalf of the appellant. It is said that where the plaintiff is

the purchaser at a Court auction held in execution of a mortgage decree his case does not fall within Article 142. It is contended that that article

only applies when the plaintiff is suing on his own title or on the title of the previous owner of the property and does apply when he is the

representative of both the mortgagor and the mortgagee. In Kunhiamma v. Kunhunni I.L.R.(1892)Mad. 140 and Maganlal v. Sankara Gindhar

I.L.R.(1897)Bom. 945, it was held that the purchaser at a Court auction in, execution of a mortgage decree is the representative of the mortgagor

and the mortgagee, having acquired both their interests in the property sold. But this cannot mean that he is outside Article 142. When the owner

mortgages his property part of his interest passes to the mortgagee, but when the property is sold at a Court auction the purchaser has vested in

him the full title of the mortgagor as it existed before the mortgage and the law which applies to the mortgagor applies to him. Section 2(8) of the

Limitation Act defines the word ''plaintiff'' as including any person from or through whom a plaintiff derives his right to sue. The appellant here

derived his right to sue from the mortgagor. It is true that part of his interest in the property came to him from the mortgagor through the mortgagee

but that does not warrant the assertion that different considerations apply when he is suing for the ejectment of a person in possession of the

property which he has bought. In my judgment there is no substance in the last contention advanced on behalf of the appellant.

For these reasons I would dismiss the appeal with costs.

Mockett, J.

I agree.

Krishnaswami Aiyangar, J.

I also agree.