Skip to content


Sankara Pillai Vs. Balakrishna Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. No. 424 of 1955
Judge
Reported inAIR1957Ker141
ActsLimitation Act, 1908 - Schedule - Articles 142, 144 and 149
AppellantSankara Pillai
RespondentBalakrishna Pillai and ors.
Appellant Advocate T.K. Narayana Pillai, Adv.
Respondent Advocate K.N. Narayanan Nair, Adv.
Cases ReferredSankaran v. Pcnnnal
Excerpt:
- - .in doing so the surveyor was only following rule 15 of the rules governing futhuval survey operations whereby the deficit in a registered area is made good from unregistered land adjoining it. and as before the registry in favour of the plaintiff the properties belonged to the sirtar and the defendants had not proved possession for 50 years they had failed to establish adverse possession set up by them......to its date. the view of the court below in this connection that the defendant had to prove 50 years' adverse possession under article 137 of the limitation act. (tra-vancore) corresponding to article 149 (indian) because only, the property originally belonged to the sirkar, learned counsel submitted was certainly wrong and he referred to annada mohan roy v. kina das, air 1924 cal 394 (a), where walmsley and buckland jj., had held that a suit by a purchaser of land from government to recover possession within 60 years but mere than 12 years from the commencement of adverse possession but within 12 years of purchase was bar-red under article 144. for, under section 2 (8) the period run as against the plaintiff's predecesscr-in-title, viz., the government, should be reckoned against.....
Judgment:

Varadaraja Iyengar, J.

1. This appeal is by the 2nd defendant and arises out of a suit for declaration of title and recovery of property on ground of trespass.

2. The disputed properties are denoted by the two schedules A & B attached to the plaint. They form separate portions of a single sub No. 100 in minor-circuit No. 1 of the Perinad Paku-thy in Quilon Taluk. This sub No. 100 was originally Kayal poramboke and was registered in the name of the plaintiff's ancestor in 1091. Besides the sub No. 100 the plaintiff owned three other sub Nos. 69, 77 and 101/B all lying in one stretch. In or about 1109 the plaintiff applied before and got the Revenue authorities to demarcate all these sub Numbers, except as regards sub No. 100 which they felt themselves unable to carry out for want of records.

The plaintiff thereupon approached Government with the result that the entire minor circuit was surveyed when it was found that only 7 out of the 35 cents of the sub No. 100 was available at spot and in plaintiff's possession for the rest and there was some over-lapping of sub No. 100 with sub No. 236 which was registered in 1102 in favour of the 1st defendant's karnavan and which later had devolved on the 1st defendant. And as there was room to suspect some irregularity in the registry proceedings relating to this sub No. 236, the Surveyor demarcated sub No. 100 by including along with the 7 cents in plaintiff's hands a 7 cents area of unregistered Kayal land in the unauthorised occupation of the first defendant and situate to the west of sub No. 236 and another 21 cents from the adjoining open Kayal so as to make up its original 35 cents. .

In doing so the surveyor was only following Rule 15 of the rules governing Futhuval Survey operations whereby the deficit in a registered area is made good from unregistered land adjoining it. The Head Surveyor before whom the matter went up approved the above demacration by his order dated 29-3-1122 and filed in the case as Ext. T. The plaintiff was dissatisfied and took the question in appeal before the Survey Superintendent who however confirmed Ext. T order, except for a variation in the allotment of unregistered land under the Rule 15. That is to say he reduced the unregistered land taken from the 1st defendants to 3-1/2 cents, he freshly took 13-1/2 cents from other unregistered land in the unauthorised occupation of the 2nd defendant and touching his sub No. 237 and made up the balance still remaining of 11 cents, from the open Kayal.

This order of the Survey Superintendent is dated 21-1-1123 and is filed as Ext. W. The plaintiff's sub No. 100 thtts stood covered by the letter ABCDEFGH in the plan attached to Ext. W of which a sketch was attached to the plaint. It was the plaintiff's case that the defendants 1 and 2 trespasesd upon the A and B schedule properties early in 1121 and were Keeping the plaintiff out of their rightful possession. She laid this suit accordingly on 24-2-1123 for declaration of her title and recovery of possession with mesne profits. The fourth defendant was im-pleaded as in possession under the first defendant.

3. The suit was contested by the defen-dants 1 and 2 by separate written statements, on the basis that the disputed plots were included in their own registered holdings and were not comprised in the plaintiff's sub No. 100. Anyhow they had been in respective possession for more than the statutory period as against the plaintiff and the plaintiff's title, if any, was lost by adverse possession and limitation.

4. The learned Second Additional District Judge before whom the case came on for trial found that the Plaint A and B schedule properties were included within the registry sub No. 100 belonging to the plaintiff and that defendants 1 and 2 were not competent to impeach the plaintiff's title. And as before the registry in favour of the plaintiff the properties belonged to the Sirtar and the defendants had not proved possession for 50 years they had failed to establish adverse possession set up by them. The trespass alleged by the plaintiff was therefore true. In the result the plaintiff was granted a decree for recovery with mesne profits from two years before suit was prayed for.

Hence this appeal by the 2nd defendant as regards B schedule property. The defendants 1 and 4 have acquiesced in the decree of the Court below as regards A schedule property and we are not therefore concerned with them or the A schedule.

5. Mr. T. K. Narayana Pilloi learned counsel for the appellant did not question before us the finding of the Court below on the question of the plaintiff's title. But he contended that the suit should have been held to be barred under Article 142 of the Limitation Act inasmuch as the plaintiff came to Court with an admitted case of dispossession by trespass of the 2nd defendant & there could have been no trespass either in 1121 as alleged or for the matter of that at any anterior time within 12 years of the suit. For it wasonly under Ext. W order on 21-1-1133 that the plaintiff obtained the B schedule property at all and even that order acknowledged a then existing possession with the 2nd defendant.

Indeed 2nd defendant's possession had commenced long previously from 1103 when he took Ext, II sale of Sub No. 237 along with the B schedule property then unregistered but in the occupation of the vendor. So even assuming it was a case of adverse possession under Article 144 as the Court below thought the plaintiff's title acquired under Ext. W order must be held to be lost by the 2nd defendant's adverse possession for more than 12 years previous to its date. The view of the Court below in this connection that the defendant had to prove 50 years' adverse possession under Article 137 of the Limitation Act. (Tra-vancore) corresponding to Article 149 (Indian) because only, the property originally belonged to the Sirkar, learned counsel submitted was certainly wrong and he referred to Annada Mohan Roy v. Kina Das, AIR 1924 Cal 394 (A), where Walmsley and Buckland JJ., had held that a suit by a purchaser of land from Government to recover possession within 60 years but mere than 12 years from the commencement of adverse possession but within 12 years of purchase was bar-red under Article 144. For, under Section 2 (8) the period run as against the plaintiff's predecesscr-in-title, viz., the Government, should be reckoned against plaintiff.

6. It seems to us, however, that the argument of learned counsel for the second defendant, has proceeded on an entirely wrong assumption that his client could set up his previous 'possession' from 1103. assuming it was true as against the plaintiff under either of the article 142 or 144 of the Limitation Act. But that was not possible inasmuch as the defendants' 'possession' in fact did not amount to a possession in law, that is, did not involve an animus possidendi or occupation with the intention of excluding the owner and other people. The defendants' possession was at all relevant times only in expectation of a registry (i. e.) in subordination to or subject to the recognition of the right or the title of the true owner Sirkar.

And such 'possession? could neither bring about 'dispossession' under Article 142 nor generate adverse possession under Article 144. So it was held in Sankaran v. Pcnnnal, 43 Trav. LR 255 (B), that possession by a person who entered on Government land with the hope that it may be registered in his name was not adverse possession but only precarious possession and cannot avail against the Government or a person acquiring title from the Government. Similarly in Commen-v. Outho, 57 Trav. LR 965 (FB) (C), where the suit for recovery was filed within 11 years 8 months of the registry of certain puthuval property in the name of the plaintiff, it was held that the defendant could not tack on four months of his previous possession.

It follows, therefore, that all the 2nd defendant's occupation till 21-1-1123, the date of Ext. W order is not of any consequence as against the plaintiff. And the suit having been laid on 24-2-1123, no question of limitation or adverse possession under Article 142 or 144 of the Limitation Act arises. Tho result is that the decree of the Court below granting recovery in favour of the plaintiff is quite proper though not for the reasons given by it and does not therefore call for any interference.

7. Learned counsel then said that the plaintiff cannot be entitled to the mesne profitsdecreed by the Court below for the two years be fore suit, as if on ground of trespass in 1121. Thisis certainly right. We accordingly disallow th' mesne profits granted by the Court below for a period before suit. The provision in the decree for future mesne profits will remain. Learned counsel wished to question the rate of mesne profits claimed by the plaintiff and awarded by the Court below. But we do not see any justification to interfere in this matter.

8. In the result we affirm the decree ofthe Court below except in regard to the provisiontherein for past mesne profits which will standdeleted. The appeal will stand disposed of accordingly. The respondent will get her costs ofthe appeal from the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //