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D.R. Adinarayanaswamy Vs. Girraju Papamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 84 and 348 of 1958
Judge
Reported inAIR1963AP121
ActsLimitation Act, 1908 - Sections 28 - Schedule - Articles 142 and 144; Evidence Act, 1872 - Sections 13
AppellantD.R. Adinarayanaswamy
RespondentGirraju Papamma and anr.
Appellant AdvocateA. Bhujanga Rao and ;R. Ramalinga Reddy, Advs.
Respondent AdvocateV. Venkataramana, Adv.
DispositionAppeal dismissed
Excerpt:
property - acquisition - articles 142 and 144 of limitation act, 1908 and section 13 of evidence act, 1872 - family property mortgaged by co-owner sister in exclusion of brothers - to render possession of co-heir adverse to other co-heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment with knowledge of other co-heirs - held, by putting mortgagee in possession with knowledge of brothers sister acquires adverse possession against co-owners. - - 6. the suit was resisted by defendants 1 and 2, who contended that ever since the death of alivelamma in 1935 and rangamma in 1936, the suit properties were enjoyed only by the surviving sisters in three equal shares, adversely, openly, and to the exclusion of the plaintiffs, and that.....venkatesam, j.1. these two appeals, nos. 84 of 1958 and 348 of 1958 are against a common judgment of the dist. j., anantapur, in o. s. nos. 18 of 1957 and 45 of 1957 respectively. the earlier suit was for partition of the plaint schedule lands, and separate possession of 2/5th share, while the latter was for the recovery of profits in respect of the same lands. parties are the same in both the suits.2. one dugga ramanna of dhannavaram had four wives. by his second wife, he had two sons, plaintiffs 1 and 2 herein, while by his fourth wife he had five daughters, viz., papamma (d-1), subbamma (deceased), lakshmamma (d-2), ran-gamma and alavelamma. ramanna died in or about 1926 and before his death, he executed a registered will, ex. a-14 dated 15-8-1924, where-under he bequeathed the suit.....
Judgment:

Venkatesam, J.

1. These two appeals, Nos. 84 of 1958 and 348 of 1958 are against a common judgment of the Dist. J., Anantapur, in O. S. Nos. 18 of 1957 and 45 of 1957 respectively. The earlier suit was for partition of the plaint schedule lands, and separate possession of 2/5th share, while the latter was for the recovery of profits in respect of the same lands. Parties are the same in both the suits.

2. One Dugga Ramanna of Dhannavaram had four wives. By his second wife, he had two sons, plaintiffs 1 and 2 herein, while by his fourth wife he had five daughters, viz., Papamma (D-1), Subbamma (deceased), Lakshmamma (D-2), Ran-gamma and Alavelamma. Ramanna died in or about 1926 and before his death, he executed a registered will, Ex. A-14 dated 15-8-1924, where-under he bequeathed the suit lands called Koneru Madi, covered by old Survey No. 583, New Survey No. 442, measuring 5 acres 33 cents, and bearing an assessment of Rs. 47/- to his five daughters absolutely to be taken by them in equal shares, and in the event of death of any of them it was provided that the other daughters should take her share equally. The will also bequeathed other properties to his other children, plaintiffs, and his wives, with which we are not now concerned.

The fourth wife of Eamanna also appears to have died two years after the death of Ramanna, so that the five daughters became orphans and had to be looked after by the first plaintiff. He brought them up and performed their marriages, and also managed the suit properties. The two daughters, Subbamma and Lakshmamma were given in marriage to residents of Kanjeevaram in the south, and unfortunately the two unmarried daughters Alivclamma and Rangamma died in 1935 and 1936 respectively. Subbamma, whose husband was one Ungarala Venkatcsu, also died in 1943. It is the shares of the two daughters, Ali-velamma and Rangamma, that are the subject matter of this litigation.

3. The plaintiff's case is that they became entitled under Hindu law to the 2/5 share of their deceased unmarried sisters, and that the remaining 3/5 was owned by the defendants 1 and 2, that their right to the 2/5 share was declared in O. S. No. 113 of 1950 on the file of the District Munsif's Court, Dharmavaram, against which there were appeals to the District Court, Anantapur, in A. S. 112 and 121 of 1951, and also a Second Appeal to the High Court of Andhra, in S. A. No. 2597 of 1952, which was decided on 31-8-1955. That suit. O. S. No. 113 of 1950, it may be noted was filed by Venkatesu, the husband of Subbamma, for partition and separate possession of 1/3 share as her heir on the ground that the present plaintiffs 1 and 2 (defendants 1 and 2 therein) were entitled to the 2/5 share of the unmarried sisters and defendants 1 and 2 herein (defendants 3 and 4 in that suit) were entitled to the remaining 2/5 share. In that litigation, their right to the 2/5 share of the suit property belonging to the two deceased sisters was declared, and they contend that they therefore became the co-owners with the defendants, and were in joint possession of the suit property.

4. During the pendency of the second appeal, the plaintiff in O. S. No. 113 of 1950 moved the District Munsifs Court Dhannavaram, in I. A. No. 619 of 1954 for appointment of a receiver for the sale of standing crop, and an Advocate, Sri Narayana Sastry, was appointed as Receiver to take possession of the crop. He sold the crop and deposited the sale proceeds into Court. Subsequently, another I. A. No. 326 of 1955 was filed in the same court, and an Advocate Sri Hanumantharao, was appointed Receiver to lease out the suit lands. It was averred that the Receiver took possession of the property and yet the defendants trespassed on the suit property and raised paddy crop. The plaintiffs, therefore, filed ' this suit for partition and separate possession of their 2/5 share.

5. During the pendency of the suit, the first plaintiff died, and his sons, the plaintiffs 3 to 5, were brought on record as his legal representatives.

6. The suit was resisted by defendants 1 and 2, who contended that ever since the death of Alivelamma in 1935 and Rangamma in 1936, the suit properties were enjoyed only by the surviving sisters in three equal shares, adversely, openly, and to the exclusion of the plaintiffs, and that the plaintiffs never had any manner of possession or enjoyment of the suit properties, that they were completely ousted, and that the suit claim is barred by time. The declaration of the District Judge in A. S. Nos. 112 and 321 of 1951 in favour of the plaintiffs was made without going into the question of actual possession, and was not valid. They contend that the plaintiffs were actually ousted from possession and it is the defendants alone that were enjoying the same adversely for over twenty years to the knowledge of the plaintiffs. They denied the plaintiffs having had possession or enjoyed the properties as co-owners, and that they were entitled to the value of the crops deposited into Court. They contended that the Advocate Receiver, Sri Hanumantharao, never took possession of the suit properties, and that the allegation that the defendants trespassed on the suit properties is false. The defendants, therefore, prayed that the suits may be dismissed.

7. An additional written statement and a rejoinder were also filed. Plaintiffs, in their rejoinder, contended that by reason of the finding of the District Judge and of the High Court in the second appeal, they were entitled to partition of the 2/5th share in the suit properties, and that the finding operated as Res Judicata.

8. The learned District Judge, on a consideration of the evidence and the law bearing on the question, found that the plaintiffs never got into possession of the suit lands after the death of Alivclamma and Rangamma, that the defendants enjoyed the suit properties for over twenty years to the exclusion of the plaintiffs, and that they have acquired a title by adverse possession, and that the finding in O. S. No. 113 of 1950 that the enjoyment of the suit land was with the defendants herein and their late sister Subbamma, is not binding on the plaintiffs, and similarly the finding in S. A. No. 2597 of 1952, that the plaintiffs are entitled to the 27.5th share is not binding on the defendants. On those findings, he dismissed both the suits.

9. Aggrieved by this decision, the second plaintiff, who has obtained an assignment of the share of the first plaintiff also, filed the above appeals.

10. Sri Bhujangarao, the learned counsel far the appellant, very rightly conceded that the previous litigation ending with the decision in S. A. No. 2397 of 1952 could not operate as res judkata, as that decision was rendered in a suit instituted in the District Munsif's Court, which had no jurisdiction to try the present suit. But he contended that it had to be followed as a binding precedent in this matter.

11. A perusal of the judgments, Exs. A.8, A.9 and A.10, is necessary for appreciating this contention. O. S. No. 113 of 1950 was a, suit filed by Venkatesu, the husband of Subbamma, for the recovery of 1/5 share in suit property as the heir to his wife. To that suit, the present plaintiffs 1 and 2 were impleaded as defendants 1 and 2, and the present defendants were impleaded as defendants 3 and 4, and the District Munsif found that under the will of Ramanna the daughters took the property as tenants in common and that each was entitled to a 1/5 share absolutely and that defendants 3 and 4 and plaintiff therein acquired the shares of the two deceased sisters. But in as much as the plaintiff claimed only a 1/5 share of the entire property he granted a decree in favour of the plaintiff for 1/5 and in favour of defendants 3 and 4 for 4/5.

12. The learned District Judge, in appeal, accepted the finding of the District Munsif, that all the daughters took the property under the will as tenants-in-common, but not as joint-tenants; but held that inasmuch as there was no plea by the surviving sisters, that they acquired title by adverse possession to the exclusion of their brothers, and inasmuch as there was no issue, the District Munsif was not justified in giving a finding on that point in favour of the two sisters. Finally, the District Judge observed, that inasmuch as the plaintiff in O. S. No. 113 of 1950 compromised his appeal, A. S. No. 112 of 1951, and got the suit dismissed, it was not possible for him to remand the suit to the trial Court for a trial on the question of adverse possession. As that was not possible, he observed:

'In the circumstances the only proper course seems to be to give a declaration of the right of defendants 1 and 2 to 2/5th share in the suit property and to leave them to file a separate suit for partition in case they wish to do so.'

and gave a decree to that effect in the two appeals preferred by the present plaintiffs 1 and 2.

13. We fail to see how the learned District Judge was justified in giving the said declaration. That declaration depended upon the question whether the rights of the present plaintiffs 1 and 2 were not destroyed by ouster on account of the adverse possession of defendants 3 and 4 therein. Having stated that there was no plea nor issue on the point, and found fault with the District Munsif for having given a finding thereon, District Judge cannot be said to have fallen into the same error as the District Munsif. He should only have meant that the present plaintiffs 1 and 2 succeeded to the 2/5th share of their sisters, and for recovery of the same they might file a suit subject to the plea of ouster and adverse possession to be raised by the surviving sister. To our minds, that is the only reasonable construction that can be placed on that declaratory decree. This decree was confirmed by the High Court in S. A. No. 2597 of 1952 (Ex. A-10 judgment). The learned Judge, in one sentence stated,

'They (defendants 3 and 4 in that suit) being tenants in common, no question of adverse possession arises unless they have been able to establish ouster to the knowledge of other co-sharers. This the defendants failed to establish.'

We cannot, presume that the learned Judge, who clearly stated that the defendants could not obtain a finding in their favour without establishing ouster; and that the finding in their favour by the District Munsif could not be sustained because of the absence of a plea and an issue intended to find that the defendants 3 to 4 therein failed to establish the plea of ouster. That could not have been the intention of the learned Judge. We must, therefore, hold that the question of ouster and adverse possession by defendants 1 and 2 has to be decided now uninfluenced by the observations in the previous litigation.

14-18. The documentary evidence adduced may now be considered. (His Lordship considered Exs. 3 to 14, which were cist receipts in favour of the defendants and Exs. B-8, B-15 and B-20 which were mortgage deeds executed by the sisters and the defendants and proceeded).

19. These documents clearly establish that till the death of Alivelamma and Rangamma, the three sisters were in possession and enjoyment of only 1/5th share each, and were dealing with it as such and that after their deaths, each of them was asserting her right to a 1/3rd share and enjoying the same and dealing with it as their own to the knowledge and exclusion of the plaintiffs. They are all registered documents whose genuineness or validity cannot, and in fact had not been impeached. Two of them are mortgages with possession, and in their case the exclusion of the plaintiff is patent and cannot be questioned and they also amount to notice of adverse possession by the surviving sisters and also ouster. The other mortgages are all in favour of the Town Bank of which the first plaintiff was the Director and Secretary during the relevant period, and, therefore, fully aware of the hostile title and enjoyment put forward by the sisters.

20. A Full Bench of the Madras High Court in Palania Pillai v. Amjath Ibrahim Rowther, 1942-2 Mad LJ 321 : (AIR 1943 Mad 622) (FB) held that where some co-owners usufructuarily mortgaged specific Stems of property held by the members of a Mahammadau family and the mortgagee entered into possession of the mortgaged items under his mortgage-deed, a suit by other members of the family to recover their share therein was barred by Article 144 of the Limitation Act at the end of the 12 years of such possession, and that adverse possession as against those members cannot be said to begin only from the date of ouster to their knowledge. The learned Chief Judge, who delivered the judgment on behalf of the Court, followed the decision in Secy. of State v. Debendra Lal Khan, ILR 6r Cal 262 : (AIR 1934 PC 23) and observed thus:-

'When one of several co-sbarers lets into possession a stranger who proceeds to cultivate the land for his own benefit, the other co-sharers must unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests, they must take the consequences.'

The learned Chief Justice held that the possession of a stranger in itself indicates that his possession is adverse to the true owner, and that there is no difference between a vendee put in possession and a mortgagee. We respectfully follow this decision and hold that the enjoyment of the entire suit property by the three sisters in shares of 1/3rd each, and their putting third parties like Jayarama Sastry and Venkata Lak-shamma in possession of the same is clear of the knowledge of the adverse possession on the part of the first plaintiff, as well as the second plaintiff.

21. Then we have the cist receipts filed by the defendants. Exs. B-9 to B-14 extend over the period from 1948 to 1950, and they show that the first defendant and the husband of D-2 were paying the cist on the suit land on behalf of Ali-velamma. Similarly in 1949 and 1950, the first defendant and Guruswami (husband of D-2) paid the rent due from the deceased, Alivelamma. These receipts establish that even before the disputes arose in 1950, for at least 2 or 3 years from 1948, the cist on Alivelamma's share was being paid by these two sisters. There are also cist receipts Exs. B-27 and B-28, But they are for the years 1955-56, and hence not of much evidentiary value.

22-27. The oral evidence may now be considered. (His Lordship considered the oral evidence and proceeded).

28. On this oral and documentary evidence we have no hesitation in coming to the conclusion that the sisters i. e., the defendants and the deceased Subbamma, alone were enjoying the shares of their deceased sisters, Alivelamma and Rangamma to the knowledge of the plaintiffs, treating the property as their own, and ousting the plaintiffs from any manner of enjoyment, and that kind of ouster lasted for more than twelve years from 1936, and that they perfected their title to the suit land by adverse possession by 1948.

29. As against this, the evidence let in on behalf of the plaintiffs may now be considered. They filed Exs. A-1 to A-7 which are the cist receipts during the period 1955 to 1957- They are all subsequent to the disputes and hence of no evidentiary value at all. They also relied on Exs. A-15 to A-17 the cist receipts showing the payment of cist by the first plaintiff, but they do not indicate that the plaintiffs 1 and 2 paid the cist on their own account much less in respect of the 2/5th share which devolved on them. The lease-deed Ex. A-I2 dated 10-9-1955 purports to be in respect of the 2/5th share, but that is also subsequent to the dispute, Ex. A-i8, a certified copy of the Patta dated 30-6-1950 filed on behalf of the plaintiffs shows that it continued to be in the name of the daughters of Eamanna for 1358 F. It does not in the least help the plaintiffs.

30. On the other hand, no explanation has been given why the two brothers, plaintiffs 1 and 2, who arc worldly wise and well-versed in business, one of whom being a Director of the Land Mortgage Bank, did not take mutation proceedings and get their names registered. Ex. A-19 a postcard addressed by the first plaintiff to Ramappa, and A-20 the acknowledgment, are equally of no avail. Thus, it would be seen that there is not a single document produced by the plaintiffs establishing that they had possession or enjoyment of the suit lands in their own right along with the defendants and Subbamma from 1935 and 1936 till 1949 or 1950.

31. The oral evidence adduced on behalf of the plaintiffs is no better. P. W. r who was the Karnam for twenty-four years simply deposed that the first plaintiff was getting the lands cultivated upto 1939. The two sisters, second defendant and Subbamma, were living at Kanjeevaram and there was nothing unnatural in that. On the other hand, the fact that the land was cultivated on behalf of the sisters would indicate that he was recognizing the possession of the sisters as being adverse to him.

It is now well settled that the classical requirement of adverse possession is that it should be nec vi nec clam nec precario. The possession required must he adequate in continuity, in publicity and in extent, to show that it is possession adverse to the competitor. But it is equally well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Onster of the non-possessing-co-heir by the co-heir in possession who claims his possession to be adverse should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. But there mast be evidence of open assertion of hostile title coupled with exclusive possession, and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of malting out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession Vide P. Lakshmi Reddy v. L. Lakshmi Reddy, (S) : 1995(5)SCALE509 .

A principle similar to that laid down by the Supreme Court was also laid down by a Bench of the Madras High Court in Lakshminarasamma v. Rama Brahmam, : AIR1950Mad680 that to constitute ouster by a co-owner there must be an open and unequivocal denial of the title of the other co-owner to the knowledge of the

32. The decision relied on by the learned counsel for the appellant, Rajah of Vizianagaram v. Rajah Setrucheria Somasekararaj, ILR 26 Mad 686 (KB) cannot be of any assistance to him, as the evidence in the present case is that the defendants paid cist in their own right, and by their several acts of possession and enjoyment ousted the plaintiffs, and it is not a case, where the plaintiffs, continuing to remain as co-heirs and the land revenue was paid by the other co-heirs.

The decision in Nirman Singh v. Rudra Pratab Narain Singh, 51 Mad LJ 836 : (AIR 1926 PC 100) is that proceedings for mutation of names are not judicial proceedings in which the title to, and the proprietary rights in immovable property are determined, but are more in the nature of fiscal inquiries instituted in the interest of the State for ascertaining which of several rival claimants to the occupation of immovable property may be, placed in possession of it with greater probability that the revenue will be duly paid. That case has no application to the facts of this case, and is of any assistance to the appellant.

33. The second plaintiff who was examined as P. W. 2 stated that himself and the first plaintiff became divided even 1927 or 1928. He could not explain why Venkatesu, the husband of Subbamma, was not made a party to this suit. He deposed that the first plaintiff and himself inherited the shares of the deceased sisters and that ever since they were enjoying the shares jointly with the other sisters since 1935 or 1936. He stated that the first plaintiff got the entire land cultivated till 1939, and thereafter was leasing it out, and taking their share of the produce, to which effect there is no evidence except his oral statement. He deposed that the first plaintiff as well as the witness (P. W. 2) were paying cist, which, as already stated, is proved to be untrue by P. W. t. The cist receipts Exs. A-1 to A-7 are all subsequent to the disputes, and some of them are even subsequent to the suit, and hence of no value. In his chief-examination, the witness deposed that he paid cist under Exs. A-1 and A-2, but he was forced to admit in cross examination that he did not pay the cist. He admitted that the disputes arose in 1949, and refers to the Panchayat through Ramaseshayya, and the proceedings relating to the appointment of a Receiver. He admitted that the first plaintiff as the eldest member and manager of the family got the marriages of the sisters and himself (P. W. 2) performed, and that he was practically attending to all the affairs of the family.

34. The Supreme Court has, in Chanabasavana Gowd v. Mahabaleswarappa, : [1955]1SCR131 ruled this:

'Where the joint owners of the property were a father and his infant son, of whom the father himself was the guardian and the infant could not act in law except through the guardian, the acts and conduct of the father in executing a lease deed of the entire property on behalf of the infant for a period of twelve years and subsequently granting receipts in terms thereof point to something more than mere non-participation in the enjoyment of profits of the property or absence of objection to the exclusive enjoyment thereof by the lessee on behalf of the lessee. In granting the lease on behalf of the infant the lather definitely asserted the exclusive title of his son to the property and by implication denied his own right as a co-owner thereto, in law the possession of the lessee is the possession of the lessor and in this case the lesson's possession was of the infant alone to the exclusion of the father. The fact that the father consented to such exclusion is immaterial. There can be in law under certain circumstances adverse possession with, the consent of the true owner and such possession becomes adverse to the owner and if continued for the statutory period creates a litle in him. Thu fact that the father subsequently within thrive years of the, lease mortgaged his share asserting his right as a joint owner would not interrupt forthwith the running of adverse possession. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot effect the continuity of adverse possession of the deseizor.'

This decision has application to the fads of the present case. During the minority of the sisters and at a time when they were absent at Kan-jeevaram, the first plaintiff managed their properties by obtaining leases and issuing receipts either as guardian or as agent, and in doing so he acted as the lessor in respect of their 1/3rd share to which they became entitled, only on the basis that the brothers had no right of possession of the property. That conduct establishes not only non-participation in the enjoyment of the profits of the property or absence of objection to the exclusive enjoyment by the sisters, but also a denial of their own right? as co-owners and the possession of the sisters to the exclusion of the brothers.

35. The fact that the plaintiffs raided a dispute or put forward a claim to possession of the lands before the Arbitrator Ramaseshayya, even assuming it to be true, would not amount to a break in the adverse possession of the sisters, because the aforesaid case is an authority for the position that a mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot effect the continuity of adverse possession. We shall point out later how the dispute before Ramaseshayya did not in any way affect the change of possession of the sisters through their tenant, A. Ramappa.

36-37. (His Lordship further considered the evidence and proceeded).

38. This is the oral evidence on behalf of the defendants in proof of their joint enjoyment of the suit lands along with the defendants T and 2. We are unable to hold from this evidence that the plaintiffs had any manner of joint enjoyment within twelve years after 1935 or 1936: or that there was no ouster,

39. Sri Bhujangarao, the learned counsel for the appellant then raised the contention that, in any event, so far as the second plaintiff (appellant) is concerned, there is no evidence to indicate that he had knowledge of the adverse possession and enjoyment by the sisters or that it amounted to ouster in law. It cannot be said that the and plaintiff was not aware of the several acts of possession and enjoyment and the mortgages, simple as well as usufructuary, executed by the sisters, ff really a distinction was sought to be made between the case of the first plaintiff and that of the second one would expect it to be made out in the plaint. But no such averments were made therein. Both the plaintiffs engaged the same Advocate and conducted the suit. The second plain-tiff, filed a rejoinder but even there he had not Pleaded ignorance of the several mortgages or other transactions, nor was such a contention raised in the lower Court. Even in the Memorandum of Appeal to this Court, such a plea was not put forward. We have given our reasons in detail as to why even the second plaintiff's case that he was in joint enjoyment of the sister's share of the lands cannot be accepted. We, therefore, reject this contention.

40. Yet another contention was raised on behalf of the appellant, viz., that, even assuming that the possession of the sisters was adverse, inasmuch as there was a panchayat held by Ramaseshayya, that interrupted the adverse possession of the sisters. The basis for this argument is the decision of the Supreme Court in (S) : 1995(5)SCALE509 . where it was ruled that when a Court takes possession of the properties through its Receiver, such Receiver's possession is that of the parties to the action according to their titles, and that the receiver being an officer of the Court from which he derives his appointment, his possession is exclusively the, possession of the, Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to he entitled thereto.

His Lordship Jagannadhadas, J. observed:

'A Receiver is an officer of Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit. To treat such Receiver as plaintiff's agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong doing to the Court and its officers. The doctrine of Receiver's possession being that of the successful party cannot, in our opinion, be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receiver's possession of his subsequent adverse possession. The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour, fn such a case the question that would arise would be different, viz., whether the interim possession of the Receiver would be a discontinuance or abandonment of possession or interruption of the adverse possession. We are not concerned with it in this case and express no opinion on it.' The principle laid down in this case applied to Receivers appointed by the Court, as Receivers are officers of the Court, and the possession of the Receiver would be treated as possession of the successful party. This, to our minds, cannot be extended to a case of a Panchayatdar put in pos-session of the properties.

41. In the instant case, what is the position? According to Section 28 of the Limitation Act, at the determination of the period limited by the Limitation Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. We have already found that even by 1948, the right of the plaintiffs to recover the property as a co-owner became barred by limitation by reason of the adverse possession and enjoyment by the sisters and ouster, and the plaintiff's right to property itself became extinguished. There can, therefore, be no question of there being an interruption of the period of adverse possession by the sisters. Further, even according to the Supreme Court decision, the Receiver's possession cannot be tacked on by a person who was initially out of possession. The other question whether the interim possession of the receiver would be discontinuance or abandonment of possession or interruption of the adverse possession was not finally decided by their Lordships.

We have also indicated above how the declaration of the Subordinate Judge and of the High Court in the previous litigation that the plaintiffs were entitled to a 2/5th share, cannot, in law, have the effect of declaring their rights in the property on the date of the judgment, but only meant that they succeeded to the 2/5th share by reason of the death of the two sisters. The judgment of the High Court, cannot therefore, be pres-sed into service for contending that the right of the plaintiffs has been declared, and that the possession of the Panchayatdar must be deemed to be their possession as the lawful owners. In this view, the decision cited by the learned Counsel, viz., Subbaiya Pandaram v. Mahammad Mustafa Maracayar, ILR 46 Mad 751 : (ATR 1923 PC 175) is of no assistance to him.

42-49. That apart, we are not satisfied that Ramaseshayya was put in possession of the suit properties. (His Lordship considered the evidence in this respect and proceeded).

50. The evidence of the defendants' witnesses is more convincing and consistent with documents. We are not satisfied that the dispute which resulted in the crop being deposited with Ramaseshyya related to the possession of the suit land. It appears to be the result of misunderstandings which arose between the first plaintiff and the first defendant in connection with tie marriage proposals. The evidence adduced on behalf of the plaintiffs does not establish that possession was delivered to the Arbitrator by the defendants. The contention of Sri Bhujanga Rao that possession of the panchayatdar would interrupt adverse possession cannot, therefore, have any application to this case, as it was not proved that Ramaseshayya was put in possession of the property by the parties who were in possession thereof during the dispute. Mere assertion of title or change of animus would not have the effect of interrupting adverse possession but one must get into effective possession in order that there may be a break. As already stated, the defendants had perfected their title by adverse possession and ouster even prior to 1948. In any view of the matter, this contention has to be rejected.

51. For all these reasons, we agree with the finding and conclusion of the learned Additional District Judge.

52. In the result, the appeals fail and are dismissed. The respondents will have their costs in A. S. No. 84 of 1958.


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