Vendnam Ramayya vs Kosuru Kotamma and Others

appeal arises out of a suit filed by the plaintiff as purchaser from the reversionary heirs of one Mallabattudu to recover possession of the

properties specified in the plaint and the question is whether the suit is barred by limitation.

Mallabattudu the last male holder of the properties died in 1889 leaving two daughters Ramamma and Govindamma. Ramamma died in 1914

and Govindamma who is the 5th defendant surrendered her estate to her sons who are the 6th and 7th defendants. They sold their rights to the

plaintiff in this suit. The findings are that Mallabattudu, about two years before his death, made an oral gift of the suit properties to his grandson

Punnayya the son of his daughter Ramamma, that the properties were managed by Subbarayudu the elder brother of Punnayya as Punnayya was a

minor, that Punnayya died in 1894 during minority, that the properties were thereafter enjoyed by Punnayya''s brothers Subbarayudu and two

others, that Subbarayadu was the last surviving member of Punnayya''s family and that on Subbarayadu''s death the properties were sold by

Subbarayadu''s daughters to the 3rd defendant. It is argued for the appellant that, as the gift to Punnayya was oral, it was invalid, that consequently

Punnaya was in possession as trespasser, that on Punnayya''s death his heir would be his mother that, as Subbarayadu continued in possession,

Subbarayalu''s possession was also that of a trespasser, that, as neither Subbarayadu nor Punnayya completed adverse possession of 1.2 years,

they could not tack on the possession of one to the other and that the plaintiff claiming through the nearest reversioner is not barred. The contention

for the respondents is that there was no break in the possession so as to revest the properties in the rightful owner, that Punnaya and Subbarayadu

cannot be treated as successive trespassers and that in any event the real owner having been out of possession for over 12 years the suit is barred

by limitation.

It is clear in the present case that as Mallabattudu himself gave up possession, the case would not fall under Article 141 of the Limitation Act as

that article applies to cases where the last full owner was in possession at the time of his death. As pointed out by Mookerjee, J in Mohendra Nath

v. Shamsunnessa (1912) 21 Cal. L.J. 157 time begins to run against the last full owner if he himself was dispossessed and the operation of the law

of limitation would not be arrested by the fact that on his death he was succeeded by his widow, daughter or mother as the cause of action cannot

be ""prolonged by the mere transfer of title. We are of opinion that Article 142 of the Limitation Act applies to the facts of the present case. It is

clear from the findings that Mallabattudu, when he made a gift of the properties to his grandson and transferred the patta in this name, discontinued

his possession. Discontinuance of possession has been explained by Fry, J. in Rains v. Buxton (1880) 14 Ch. D. 537 as taking place where the

person in possession goes out and is followed into possession by another person. In all cases where the person who was in possession at one time

and discontinued possession or was dispossessed, seeks to eject a person in possession he has to show that he was in possession within 12 years

before the suit. We need only refer to Secretary of State for India v. Krishna Moni Gupta (1902) ILR 29 Cal. 518.(PC). We do not think that on

the facts of the present case it can be said that there has been independent trespass by successive persons so as to give the plaintiff 12 years

against each successive trespasser. Mr. Narayanamoorthi has referred us to Agency Company v. Short (1888) 13 A.C. 793 as authority for the

proposition that in cases of successive trespassers the limitation ceases to run against the lawful owner of land after an intruder has relinquished his

possession. Lord Macnaghten after dealing with the contention that, if the statute once commenced to run, it would not stop except by the owner

going into possession and so getting as it were, a new departure observes ""I heir Lordships are unable to concur in this view. ""I hey are of opinion

that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons

possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no

one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law,

which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary.

The possession of the intruder ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does

not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual

interroper or lucky vagrant. There is not in their Lordship''s opinion, any analogy between the case supposed and the case of successive disabilities

mentioned in the statute. There the statute '' continues to run '' because there is a person in possession in whose favour it is running. ""This case does

not help him as it is not shown in the present case that any body gave up possession which was taken up by a fresh trespasser. It is argued by Mr.

Narayanamurthi that on the death of Punnayya it must be taken that there was, an interruption in the possession and that there was an interval

between Puanayya''s death and Subbarayadu''s taking possession in ins own right however minute the interval may be and that except in the case

of succession or devolution all other cases would fall within the principle enunciated in Agency Company v. Short (1888)13 A.C. 793 . We do not

think that there is anything in the case to support this extreme contention. In Willis v. Earl of Howe (1893) 2 Ch. 545 a person trespassed upon

property and another alleging himself to be his brother when he was not his brother continued the trespass. It was argued that they must be treated

as separat trespassers as they were not brothers. Kay, L. J. observed. ""It was suggested in reply that, as the alleged brother was not really the

brother of George, his taking possession formed a new departure, and that the statute would begin to run from that entry, and that the previous

possession of George was not material. The effect of that would be that if a series of occupiers not claiming under one another, kept out the real

owner for 100 years, time would only run against him from the moment when the last of such occupiers entered into possession. I am of opinion

that this is not the law. A continuous adverse possession for the statutory period, though by a succession of persons not claiming under one

another, does in my opinion, bar the true owner, I desired to consider the case to which I referred during this part of the argument but which was

not then before the court, Agency Company v. Short (1888)13 A.C. 793. In that case there had been an adverse possession of land for some time

short of the statutory period, which was then abandoned, and the land left vacant, and after the statutory period had elapsed, but within 20 years

before the plaintiffs'' action, the defendant, or his predecessor in title, took possession. The law is thus stated in the language of Lord Macnaghten

(already set out above). These observations were made in a case in which, as I have already noticed, the defendant or his predecessors had not

been in possession for the statutory period. If his defence could prevail, it would be enough for a man who entered the day before the action

brought to say that the true owner had left the possession vacant for more than 12 years. But it was not meant that if the possession had not been

vacant, but some one or other had been in adverse possession during the twelve years, such possession would not bar the true owner, unless all

such occupants could show a title derived from one another."" The law is thus stated in Dart on Vendors and Purchasers. Vol. I, 7th Edition page

""In order that the title of the true owner may be barred by the adverse possession of a trespasser or a serious of trespassers the possession

by them must be continuous, and so long as it is continuous it is immaterial whether they claim through one another or independently; but if a period

of time should elapse, however short, after the abandonment of one trespasser who has not been in for the full statutory period and the entry of

another the title of the true owner is, as from the time of such abandonment, restored to him without any entry or act done on his part, for the

statute does not apply to a case of a want of actual possession by the true owner, but only to cases where the owner is out of possession and

another is in possession for the prescribed time."" It is no doubt true that on the death of Punnayya during minority his mother would be his heir. But

it appears from the facts of the present case that Punnayya and his brother Subbarayadu and the other brothers were undivided and that their

mother was living with them. Subbarayadu would therefore be the presumptive reversioner on the death of the mother and it is clear from the

documents filed that Punnayya''s mother was a consenting party to Subbarayadu enjoying the properties after Punnayya''s death. She was living

with them and raised no objection. Under these circumstances we find it difficult to hold that there was a fresh trespass by Subbarayadu after the

death of Punnayya. There was continuity of possession the person holding possession being the next presumptive heir of the deceased. As the

plaintiff has not proved that he or his predecessor in title was in possession of the properties within 12 years before the date of the suit, we are of

opinion that the suit is barred and was rightly dismissed.

The Second Appeal fails and is dismissed with costs.