The Sivalokam Estate vs Devadasan

Bellie, J.—The defendant Sivalokam Estate is the appellant in this second appeal. The suit was dismissed in the trial Court but it was

decreed in the first appellate court.

The suit relates to 1 acre 25 cents in Survey No. 2894, Kaliyar Village. The entire extent of 19 acres 41 cents in the said survey number

originally belonged to Chennathu Veedu of Munchiri. A partition was effected among the members of the tarwad on 6.11.1928. After this partition

the members of the tarwad sold different shares to different purchasers. The Plaintiff purchased a specific portion of 1 acre 25 cents from the

owners thereof viz., Kesava Pilial Krishna Pillai and others on 7.4.1959 under Ex.A.1 sale deed. The defendant Sivalokam estate purchased 8

acres 90 cents in the eastern - most portion of the suit survey field. According to the plaintiff this is on the east of the said 1 acre 25 cents

purchased by him. The land on the west of this plaintiff''s 1 acre 25 cents was purchased by some other persons. One of them by name David filed

a suit O.S.No. 502 of 1965 for redemption of a mortgage and recovery of possession and also for demarcating the area belonged to him. In that

suit the present plaintiff was the eleventh defendant and the present defendant was the eighth defendant. A commissioner was appointed in that

case and he on inspection found that the purchasers of different extents of land were not in possession of the lands as described in the documents

and it was discovered by him that the present plaintiff was in possession of a portion of land covered by the sale deed taken by the plaintiff in that

case i.e., O.S.No. 502 of 1965 and the area covered by the sale deed of this plaintiff was found to be a portion that was in possession of 8th

defendant in O.S.No. 502 of 1965 i.e., the present defendant. The trial court on the basis of the Commissioner''s report and plan decreed the suit

O.S.No. 502 of 1965 but on appeal the first appellate Court allowed the appeal and dismissed the suit, but however the High Court in the Second

Appeal No. 2186 of 1972 by its Judgment dated 19.12.1975 allowed the second appeal and restored the trial court''s judgment and decreed the

suit. The High Court made an observation that if the 8th defendant therein i.e., the present defendant is in possession of any portion of the land

purchased by the 11th defendant therein i.e., the present plaintiff, it is open to the latter to take necessary steps to get possession of that portion.

Actually the whole of the area purchased by the plaintiff happens to be in possession of the defendant. Now the plaintiff has filed this suit for

recovery of 1 acre 25 cents purchased by him which is in possession of the defendant.

The defendant contends that the suit plot is not a separate plot as alleged but it forms part of the defendant''s property. In the partition deed the

total extent of the property in the survey number was divided into six parts and those were allotted among the owners but however actually they

were not in possession of the land strictly in accordance with the items allotted in the partition deed. The defendant purchased on 18.10.1986 item

6 in the ''A'' Schedule in the partition deed and on 6.2.1957 item 4 in the ''C schedule and on 2.8.1962,1 acre 13 cents in item 6 of ''B'' Schedule.

The plaintiff purchased 1 acre 25 cents just west of the said 1 acre 13 cents. The balance of 1 acre 50 cents was owned and possessed by the

10th defendant in O.S.No. 502 of 1965. The plaintiff and his predecessors-in-title were in possession of the yellow coloured portion in the

Commissioner''s plan Ex.C.3 O.S.No. 502 of 1965. The portion just east of that was in enjoyment of this defendant''s vendors who sold it to the

defendant on 2.8.1962 under Ex.B.3 and gave possession. Thus this defendant is in possession of the land up to the said yellow coloured portion

in Ex.C.3 in O.S.No. 502 of 1965. The portion further east of this has been already in possession of this defendant under earlier purchase.

According to the defendant the observation made by the High Court in O.S.No. 502 of 1965 is only a casual one and it is not a finding binding on

this defendant. There was no issue raised in the earlier case between the 8th defendant (defendant here) and 11th defendant plaintiff here) and this

defendant has prescribed title by adverse possession in the suit land and therefore the plaintiff has no right to recover possession from it

(defendant).

The trial Court on consideration of the issues framed in the case and the evidence let in, accepted the case of the defendant that there was no

binding decision in the earlier case O.S.No. 502 of l965 on this defendant and the defendant has prescribed title by adverse possession to the suit

land and therefore the plaintiff has no right to recover possession from it. Hence he dismissed the suit.

On appeal the first appellate Court Judge did not agree with the findings of the trial Court and held that the defendant has failed to prove that he

was in possession of the suit land for more than 12 years and therefore the plaintiff who has title to the land is entitled to recover possession from

the defendant. In this view of the matter the first appellate Court set aside the Judgment of the trial Court and decreed the suit.

It is not in dispute that the plaintiff, had purchased 1 acre 25 cents in the suit survey filed on 7.4.1959 under Ex.A.1 sale deed. The defendant

purchased 8 acres 90 cents under three documents Ex.B.1 dated 18.10.1966, Ex.B.2 dated 6.2.1957 and Ex.B.3 dated 2.8.1962 and according

to the plaintiff the land purchased by the defendant is the eastern most portion of the survey number and it is on the east of the said 1 acre 25 cents

purchased by him. It is now the plaintiff''s case that the said 1 acre 25 cents is not in his possession but it is in possession of the defendant. His

further case is that since the date of sale he has been in possession of some other portion in the western side and that portion really belongs to

David, the plaintiff in O.S.No. 502 of 1965, and in that suit it has been decreed by the High Court that it belongs to David and he is entitled to get

possession of it. Therefore the plaintiff''s case is that he was in possession of David''s land by mistake and the land to which he is entitled to

possession is in the possession of the defendant who has no right to be in possession and therefore the plaintiff is entitled to recover possession

from the defendant. As against this the defendant''s simple case is that though as per its documents the defendant is entitled to 8 ares 90 cents it

(defendant) is actually in possession of more extent and it includes the suit property of 1 acre 25 cents and this possession has been from the date

of its purchase under Ex.B.3 i.e., from 2.8.1962 and before that its vendors had been in possession of the same and therefore even though the

defendant has no title to the suit property it has clearly prescribed title by adverse possession and hence the plaintiffs suit for recovery of

possession from the defendant will not lie.

K. Ramamurthy, learned Counsel for the appellant-defendant contends that the first appellate Court has not understood the defendant''s case

properly and mis-interpreted the Judgment of the High Court in S.A.No. 2186 of 1972 out of the suit O.S.No. 502 of 1965 which was filed by

David in which the present plaintiff was the 11th defendant and the present defendant was the 8th defendant. The suit O.S.No. 502 of 1965 was

filed by the plaintiff therein for redemption of mortgage and for demarcating the boundaries of his land in the survey number and in that case it was

found that the land purchased by the plaintiff therein was in occupation of the 11th defendant therein i.e., the plaintiff here and that he has not

pleaded any adverse possession and therefore the plaintiff therein was entitled to a decree for fixing the boundaries of the land that was in

possession of the plaintiff here as his land. It is also observed by the High Court that,

If the 8th defendant is in possession of any property belonging to the 11th defendant either in part or in entirety, it is open to the 11th defendant to

take necessary steps to get possession of that property from the 8th defendant, who had to claimed in this suit anything more than what he has

actually purchased under Ex.B.1 to Ex.B.3 and Ex.B.10.

In view of this observation of the High Court it is according to the plaintiff that the defendant cannot claim adverse possession and if he can claim

adverse possession the time for limitation should be counted from the date of Judgment of the High Court i.e., 19.12.1975 and not before that. But

there is nothing in the Judgment that precludes the 8th defendant therein i.e., the defendant here from claiming adverse possession in case the 11th

defendant therein i.e., the plaintiff here takes steps for recovery of possession. Therefore certainly the defendant is entitled to claim adverse

possession.

It is the further contention of the plaintiff that the plaintiff has been by mistake in possession of the land of David and similarly the defendant has

been by mistake in possession of the land of the plaintiff and therefore it cannot be said that the defendant was in possession adverse to the interest

of the plaintiff. I do not agree. As stated above it is the defendant''s case that when the defendant purchased the land under Ex.B.3 and took

possession of the land conveyed to it (defendant estate) it has so happened that the defendant estate has taken possession including the suit land

from the vendors. It must be remembered that it is the case of the defendant in the written statement that its vendors had been in possession of the

suit land. This case of the defendant is not disputed by way of filing any rejoinder or by any other way. It is not clear how the defendants vendors

came to possess the suit land also. It is common case that though the parties agreed for a partition and a partition deed was executed, actually the

different parties were not in possession of lands quite in accordance with the extent of shares allotted to them. May be this is the reason that the

defendant''s vendors were in possession of a portion of the land which was in excess of the extent to which they were entitled. From this it would

appear that even as against the plaintiffs vendors the defendant''s vendors had been in possession of the land and that possession has been

transferred to the defendant in 1962 under Ex.B.3. Therefore it is not a case of mistake that the defendant is in possession of the suit land and on

the other hand it appears they had all along took it that he suit land is a part of the land purchased by them. It is not the plaintiff''s case that he really

wanted to purchase the present suit land but it so happened that he has been put in possession of a different land i.e., the subject matter in O.S.No.

502 of 1965. If he really wanted to purchase the present suit land, he would have then seen to it that he was put in possession of the correct land

purchased by him. Obviously without even knowing the correct identity of the land he has purchased from his vendors, he appears to have

accepted possession of a different land. This shows the lack of elementary care a purchaser should normally have. Throughout in the earlier case

i.e., O.S.No. 502 of 1965 the plaintiff (as 11th defendant) has been contending that the subject-matter of that suit was the land purchased by him

and only after the Commissioner''s finding and the Judgment in the second appeal in S.A.No. 2186 of 1972 S. David v. G. Devadasan and 5 Ors.

he has now pleaded that the land purchased by him is the present suit land and the defendant is in wrongful possession of it. On these

circumstances the plea of the plaintiff that the defendant is not in adverse possession cannot be accepted.

Even if it can be said that the defendant by mistake took possession of the suit land which is beyond the boundaries of the land purchased by it,

still considering the circumstances of the case, 1 do not think it can be said that the defendant cannot plead adverse possession. In Raman Nair

Madhavan Nair v. Kuttiyamma Karthiyayiniamma 1954 K.L.T. 195 it has been held that,

Where a guarantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries and enters upon and

actually occupies and improves lands not included in the deed, claiming and supposing to be his, this occupation is deemed adverse within the

meaning of the statute of limitation, and, if continued the requisite length of time, will bar the right of the true owner. The enjoyment, though under

the mistaken notion of right, would still be adverse to the real owner of the property.

This principle applies to our case on all fours. In Secy. of State Vs. Dist. Board of Tanjore, it has been held that even if a person is in possession of

a property under a mistaken notion of right, his possession is adverse to the real owner. The decision in N.S. Kuppuswamy Odayar and Another

Vs. The Panchayat Narthangudi and Others, is also relevant wherein it is laid down after referring to the decision in Secretary of State for India in

Council v. Debendra Lal Khan 66 M.L.J. 134 that,

Once a trespasser exercises the rights of possession and ownership openly, it is enough to constitute adverse possession and that there is no

obligation on his part to bring to the notice of the real owner....

Therefore it appears to me beyond doubt that the defendant''s possession of the suit land is adverse to the real owner i.e., the plaintiff.

The next point that has to be decided is whether the defendant has prescribed title by adverse possession i.e., whether the defendant has been

in adverse possession of the suit land for more than 12 years before the suit. The lower appellate Court seems to be of the definite opinion that the

defendant''s possession is adverse only from the date its filing written statement as 8th defendant in the earlier suit O.S.No. 502 of 1965 i.e.,

31.3.1966. But it is not clear as to on what basis the learned Judge says so. The defendant has stated therein that the defendant is in possession of

8 acres 90 cents. From this there is no meaning in saying that the adverse possession of the defendant starts only from 31.3.1966. On the other

hand this would only show that the defendant estate had been under the impression that the suit land occupied by it is within the boundaries of the

property purchased by it. It is observed by the first appellate Court, relying on the decision in S.M. Karim Vs. Mst. Bibi Sakina, , that the

defendant has not stated from what time it had been in adverse possession. But as seen above it is the clear case of the defendant that from the

date of Ex.B.3 sale deed the defendant has been in possession of the suit property and even before that its vendors had been in possession.

Therefore the present suit having been filed on 23.10.1976 the defendant had been in possession of the property for much longer than 12 years.

The learned Counsel for the appellant-defendant is right in his contention that the defendant can even tack on with its possession the possession of

its vendors also for the purpose of claiming adverse possession. On this point the learned Counsel cites the decision in Abbas Dhali and Ors. v.

Masabdi Karikar (1914) 24 I.C. 216 wherein it is laid down:

A vendor cannot confer upon his transferee a better title than he himself possesses. Consequently a purchaser at a private sale when the vendor

was out of possession at the date of sale is in no better position than his vendor, and has to bring his suit within the same period as would be

allowed to his vendor.

According to the plaintiff his purchase is on 7.4.1959. Twelve years period can well be computed from this date because even from this date the

possession of the property by the defendant''s vendors had been adverse to him. As per the report of the Commissioner Ex.A.2, in the suit land

there was rubber plantation and the plantings should have been made between 3 to 7 years. Therefore the plantings are aged minimum of 3 years.

The Commissioner''s report is dated 31.7.1967.

Hence the plantings should have been done late, in July, 1964. Therefore on the date of suit 12 years have clearly elapsed even from the date

of planting as per the commissioner''s report. It is manifest therefore that the defendant has prescribed title by adverse possession to the suit land.

Hence the plaintiff even though he has title to the land cannot recover possession from the defendant. Therefore the appellate Court Judgment is

wrong and it cannot be maintained. Consequently the Judgment of the lower Appellate Court is restored. The appeal is accordingly disposed of.

Considering the circumstances of the case there will be no order as to costs.