1. This is a plaintiff's appeal arising out of a suit for declaration. The facts of this case are rather complicated but Mr. Pande, the learned Counsel for the appellant, has stated, them with great clarity. They are briefly these:
2. One Swarath Ri died in 1874, leaving a widow Mt. Lachmina, a son named Rm Daur and a daughter Mt. Bihansa. Ram Daur's wife was Mt. Rano. Bihansa was married to a man named Raji Rai, who had, by her two sons - Sagar Rai and Banarsi Rai - defendants 1 and 2 in this action. After Ram Daur's death the property came in the possession of Mt. Rano. After her death, it went to Mt. Lachmina.
3. Some time, prior to 1890, Mt. Lachmina sold half of the estate to Mahabal, the father of the plaintiff. On 11-4-1897 she executed a mortgage by conditional sale in favour of Raji Rai, the father of defendants 1 and 2 and the predecessor in title of defendants 3 to 10. She died in 1910. In 1917, Mt. Bihansa brought a. suit for cancellation not only of the sale in. favour of Mahabal but, curiously enough, of the mortgage by conditional sale in favour of her husband. Both these transactions were challenged. on the ground of want of legal necessity. That suit was resisted on the ground that Ram Daur, and not Swarath Rai, was the last male owner and Mt. Bihansa, as the sister, had no title. Legal necessity was also pleaded. It might be mentioned here that the Act which improved the status of sisters, had not come into existence by then. The suit was dismissed.
4. In 1919 a suit No. 26 of 1919, was brought by Mahabal Rai for a declaration that the mortgage by conditional sale dated 11-7-1893 was not justified by legal necessity. He claimed to be the nearest reversioner and in this capacity, he instituted the suit. One of the defendants was a man named Khedu who had acquired the rights of defendants 1 to 10, i.e., of the mortgagees, under an assignment of 13-3-1919. This suit was compromised on 20-3-1919. According to this compromise, Mahabal Rai relinquished all his rights in the property in favour of Khedu for a sum of Rs. 60/-.
5. The present suit was instituted by the plaintiff, after the death of his father Mahabal Rai, in 1942, for a declaration that the compromise of 20-3-1919 was vitiated by fraud and that he continued in possession ever since, notwithstanding the compromise and notwithstanding all that had happened prior or happened subsequent to that date.
6. The defence, in brief, was that the compromise was not vitiated by fraud nor could the plaintiff prove his possession. The learned Munsif dismissed the suit. The lower appellate Court agreed with the learned Munsif on the question of fraud, but disagreed with him on the question of possession. It found that this possession was with the permission of Sagar Rai, one of the sons of Raji Rai, the mortgagee by conditional sale under the deed of 11-7-1893.
7. In second appeal before me, Mr. Pande, the learned Counsel for the appellant, contends that in the absence of clear evidence of permission his possession must be deemed to be adverse. He relies on the classical definition of adverse possession: nee vi nee clam nee precario Secy. of State v. Debendra Lalkhan . His argument is that this possession answered all the tests laid down by their Lordships of the Judicial Committee, i.e., it was adequate in continuity, adequate in publicity and adequate in extent.
8. It is no doubt so but their Lordships were only attempting to define the outward symbols of that possession. Their Lordships have said nothing which comes in conflict with or militates against the fundamental principle of law that I there can be no adverse possession without an animus to prescribe In Lalit Kishore v. Ram Prasad : AIR1943All362 which was no doubt a case of easement, the learned Judges made an observation which will be of assistance in the case before me. Say they : 'physical acts must be accompanied by the requisite animus or intention.'
9. The question was considered their Lordships of the Judicial Committee in the well known case in Bibhabati Devi v. Ramendra Narain Roy 34 A.I.R. 1947 P.C. 19. The facts were briefly these: One Ramendra Narain, tie husband, was treated. as dead and his wife remained in possession. After about thirteen years he came on the scene and brought a suit for possession of the estate on the allegation that he was wrongly treated as dead, he was alive. One of the grounds on which the suit was resisted was. limitation. It was pleaded by the wife that she had remained in possession for more than twelve year's and had prescribed complete title. Their Lordships rejected the contention on the ground that, she never thought that her husband was alive. She, on the other hand, remained in possession under the impression that the husband was dead, she had, therefore, no animus to prescribe the absolute title. Lord Thankerton delivering the judgment observed thus:
Finally, the appellant rests on Article 144 and Section 23 of the Limitation Act of 1908. On the supposed death of the Second Kumar the appellant entered on her widow's estate in the undivided one - third share of the Bhowal estate, which belonged to her husband and she thereafter enjoyed it - after 1911, through the Court of Wards - for a period much exceeding twelve years, and the question is whether her possession was adverse to her husband, he being in fact alive. Possession in fact must be adverse to a living person, and, as she was possessing under a mistake as to his death, it is difficult to see how she can claim that by her possession she was asserting a right adverse to one whom she regarded as dead.... It might well be argued that, according to the Hindu law the wife is half of the husband, but their Lordship prefer to base their rejection of the appellant's contention on the broader ground that her possess on was not adverse to a husband, whom she regarded as dead.
This is only an amplification of the principle of law already emphasised that there can be no adverse possession without an animus or intention.
10. The learned Counsel for the appellant also contends that the Court below has found that the appellant or his father was in possession with the permission of Sagar Rai, one of the sons of Raji Rai, but the proper person whose permission was necessary or could have changed the character of the possession was Khedu Rai. This argument, though plausible, is, to my mind, not sound. The question of animus is a question of personal equation and all depends upon the will of the person in possession. It has no relation to anyone else.
11. It is, therefore, immaterial whether the appellant or his father was in possession with the permission of Sagar Rai or of Khedu or of anyone else; so long as the intention to prescribe is lacking, there can be no question of adverse possession. I, therefore, dismiss the appeal. In the special circumstances of the case, I direct that the parties shall bear their own costs.