1. I agree with the judgment which my learned brother is about to deliver. The question whether possession in any particular case is adverse is a question of fact. A judgment in a prior suit may operate as res judicata in a subsequent suit between the same parties or their representatives in interest if it decides what was the character of the possession of any person who was a party to that suit, e.g., whether it was then adverse or permissive possession or whether it was separate or joint possession. But I am, with due respect, quite unable to understand how the judgment of a court declaring that one of the parties has no legal title to the properties in suit, can have the effect of causing his possession to cease to be adverse to the opposite party from the moment of its pronouncement, so long as possession remains undisturbed. Such a judgment would rather appear to emphasise the adverseness of the possession of the trespasser as against the true owner. It cannot benefit the true owner who omits for some reason or other to take steps to eject the trespasser before the latter completes the period of possession required for the establishment of a prescriptive title. The judgment relied upon in this case, O.S. No. 151 of 1912, was a judgment in a suit brought by the present defendant. It decided a question of title without declaring the character of his possession. As in the result the suit was dismissed, the present plaintiff could not make use of it for ejecting the present defendant in. execution of that decree. He waited too long to institute the suit with the consequence that when he came to a Court as a plaintiff he found himself barred by the Statute of Limitations. We must follow the decisions of this Court in preference to that in Mir Akbar Ali v. Abdul Ajij I.L.R(1920) . 44 Bom. 934 . The article governing limitation in this suit was rightly taken to be Article 124 - Vide Pattaikawa Manakkal Kuppan v. Choorakkapatti Munde Kottil (1912) 14 I.C. 168.
2. The appeal is allowed with costs of appellant here and in the lower appellate court to be paid by plaintiff, and the decree of the District Munsif dismissing the suit with costs will be restored.
Venkatasubba Rao, J.
3. The dispute relates to a charity known as Abiraman Thiruvasai Choultry. The plaintiff (respondent before us) brought the suit for recovery of possession of a choultry building belonging to the said charity alleging that he was the trustee thereof. The 1st defendant resisted the suit on the ground that the plaintiff was not the trustee and the right, if any, which the plaintiff possessed to the trusteeship became barred by limitation. The first issue framed is : 'Whether the plaintiff is the trustee of the suit charity?' and the 2nd, 'Whether the plaintiff's claim to the trusteeship is time-barred?'.
4. The institution is thus described by the subordinate judge : 'The plaint Thiruvasai is a small building at Sikkal near Negapatam where Paradesis take rest. The origin of the Thiruvasai is not known. The trust owns the choultry and a few house sites. It has only an income of about Rs. 10 or 11 per annum.'
5. The history of this institution so far as it is relevant to the facts of this case may be briefly set forth. One Mangarn Paradesi was managing the choultry. During his time a stranger Kathan Paradesi was living with him in the choultry. Sometime after Mangam's death about 1898 disputes arose between the plaintiff, who is Mangam's first cousin, and the 1st defendant who is Mangam's sister's son. The 1st defendant was not at first serious in regard to denying the plaintiff's title, for when he received information about Mangam's death the 1st defendant authorized Kathan to act under the plaintiff. So Kathan obtained registered lease deeds in the name of the plaintiff from tenants occupying the house sites belonging to the trust. The 1st defendant soon after asserted that he was the trustee, ousted Kathan from the choultry in 1.901 and himself took actual possession. From 1907 the plaintiff has been disputing the title of the 1st defendant to the trusteeship of the charity. In 1901 the 1st defendant executed certain mortgage deeds for loans borrowed for repairing the choultry. The creditor brought O.S. No. 87 of 1907 on the file of the Negapatam District Munsif's Court against the 1st defendant and others and on objection taken by some defendants the present plaintiff was also impleaded as the 9th defendant. It was found by the Court that though the present plaintiff had legal title to the trusteeship, the 1st defendant was the de facto trustee or manager from 1901. Subsequently several rent suits were filed by the 1st defendant against the tenants for the recovery of rents in respect of trust properties. The finding in effect in those suits was that the present plaintiff had a better title to the office of the trusteeship, that the present 1st defendant was de facto trustee from 1901, and that the plaintiff's title was not barred by limitation as the 1st defendant has not acquired a valid title by adverse possession for the full period of 12 years. On this finding the suits for rent were dismissed. The 1st defendant thereupon filed O.S. No. 151 of 1912 on the file of the Negapatam District Munsif's Court for a declaration that he was the trustee. It was found that the present plaintiff had the legal title and that the present 1st defendant had mere possession. In consequence of this finding the suit was dismissed on 27-6-13. The 1st defendant continued to remain in possession and the plaintiff brought the present suit on 21-7-1914.
6. The District Munsiff fully discussed the evidence and recorded his findings on the two issues mentioned above, that the plaintiff had the legai title to the office of trustee; but that the 1st defendant had the effective control of the choultry, and its management in his own right as trustee from the year 1901 and that the title of the plaintiff was therefore barred under Section 124 of the Limitation Act. The Subordinate Judge accepted the findings of the District Munsiff that the plaintiff is the trustee and that the possession of the 1st defendant was adverse from 1901.
7. From the wording of the issues framed and from the discussion of the evidence, it is abundantly clear that both the District Munsiff and the Subordinate judge have applied their minds to the question of the trusteeship of the suit charity and not merely to the right to the choultry building which is only one item of the properties belonging to the trust. The contention therefore of the respondent, that the lower courts have not considered the applicability of Article 124 is utterly untenable. The District Munsif expressly refers to that Article at the end of paragraph 7 of his judgment.
8. The Subordinate Judge however reversed the decision of the District Munsiff, and the ground on which he set aside that decision involves the determination of a question of some importance and interest. In the opinion of the Subordinate Judge the judgment in O.S. No. 151 of 1912 dated 27-6-1913 breaks the continuity of the 1st defendant's adverse possession; and for this proposition he relies upon the authority of Mir Akbar All v. Abdul Ajij I.L.R(1920) . 44 Bom. 934. The Subordinate judge says: 'Then the question is whether, because if the failure of the 1st defendant in getting a declaration in his favour as trustee in O.S. No. 151 of 1912, his adverse possession ceased from the date of that decree (June 1913) and he cannot tack on his previous possession, from 1901 to mature his title by adverse possession. The decision m Mir Akbar Ali v. Abdul Ajij I.L.R.(1920) 44 Bom. 934 clearly supports the plaintiff's contention.' He concludes : 'Following the decision in Mir Akbar Ali v. Abdul Ajij (1920) I.L.R. 44 Bom. 934 I find that 1st defendant cannot tack on the period of his possession prior to the decision in O.S. No. 151 of 1912.'
9. I may at once state that this reasoning is unsound; for in his view the adverse possession of the 1st defendant ceased from the date of the decree. The question of 'tacking on' does not arise at all because there are no two periods of adverse possession referred to by the Subordinate judge. According to him the decree in O.S. No. 151 of 1912 had the effect of preventing the statute of limitation from running and the Subordinate Judge was misled into using the expression 'tacking on' by some observations which were made in Akbar Ali v. Abdul Ajij I.L.R.(1920) 44 Bom. 934 . I shall presently refer to the cases that bear upon the subject, but on principle it seems to me, with great respect, that the decision on which reliance was placed by the lower appellate court is wrong. Adverse possession is a question of fact and always implies that the right to immediate possession subsists in the true owner and not in the person having adverse possession. An adjudication that the true owner had a good title to possession is entirely consistent with the fact that actual possession is with another party who ousted the true owner and has been holding possession as against the true owner on his own behalf. I therefore fail to see how a decree which negatived the 1st defendant's right could possibly be regarded in the nature of an interruption of the continuity of possession in Akbar Ali v. Abdul Ajij I.L.R(1920) . 44 Bom. 934. Macleod, C.J. assumes that when there is a decree of Court deciding that a certain party has no right, he must, if he wishes to acquire a good title by adverse possession, start afresh after the decree, because his losing the suit puts an end to his previous adverse possession. The learned Chief Justice bases this conclusion upon the ground that it cannot be presumed that the party having adverse possession intended, the moment the decree was passed negativing his rights, to continue to hold adversely to the successful party and in effect in contempt of the decree aforesaid. The judgment proceeds to say that it is quite possible that the party relying upon adverse possession might, finding that the successful party was remiss in seeking to execute the decree, gather fresh courage and might, after a certain period had elapsed from the date of the decree, determine to set up again a title in himself against the successful party in the suit. These in short are the grounds of the decision. If the court comes to a conclusion that as a fact the adverse possession ceased and that the party setting up adverse possession, on account of his respect for the decision, determined not to hold the property adversely, there is then no continuity of adverse possession because the party deliberately ceased to hold the property adversely. But the decision of the Bombay High Court appears to be based upon a presumption that a decree against the party in possession ipso facto determines adverse possession. The learned Chief Justice does not support his view by reference to any authority, and with great deference I am unable to follow the decision above referred to.
10. With the exception of the case quoted, the authority seems to bf entirely on the side of the appellant.
11. In Sheikh Mukbool Ali v. Shaikh Wajed Hussein (1876) 25 W.R. 249 Sir Richard Garth, C.J. and Brich, J. held that where a person was in actual possession of property from the time when the deed conveyed it to him the decision which declared that deed to be fraudulent did not have the effect of putting another claimant in possession. Garth, C.J. observed: 'Whatever the decree might have been, the defendant's possession could not be considered as having ceased in consequence of that decree, unless he were actually dispossessed. The fact that there is a decree against him does not prevent the statute of limitation from running,'
12. Ram Lal v. Masum Ali Khan I.L.R.(1902) All. 35, also supports the appellant's contention.
13. Babaji Akoba v. Dattu Laxman I.L.R.(1912) 37 Bom. 64 has been relied upon by the plaintiff. It must be said that this is not a direct authority on the question under consideration. But the following observations of Batchelor, J. have some bearing. 'In 1898 it was held that he was a member of a joint family. But it was not decided that he was in possession of any part of the family property, either directly or constructively; and at a given moment a Hindu may be a member of a joint family entitled on partition to his share and may still be in process of being excluded to his knowledge. That is what has happened here. Possession is a mere matter of fact, and adverse possession, as I understand it, means possession held by some person on his own behalf of on behalf of some person other than the true owner, the true owner having a right to immediate possession. To say, therefore, that in 1898 the plaintiff had a good title to possession is perfectly consistent with saying that in fact possession was with the defendants, who were ousting the plaintiff to his knowledge and in spite of his title.' Raghunatha Chariar v. Thrivengada Ramanujachariar 8 I.C. 883 deals with the question of adverse possession under Article 124. As in the case on hand, there also it was the effect of a declaratory decree that had to be considered, and the learned Judges observed: 'And no s authority has been cited in support of the proposition that the passing of a declaratory decree in favour of the plaintiff will stand in the way of the defendant in the suit acquiring title to the property by adverse possession, such possession having commenced before institution of the suit for title and continued afterwards for the period required by law.' There is an observation in the judgment which may be said to involve the inference that the result would be different if the decree were a decree for possession. But I do not think that there is any warrant for this distinction. This case is a direct authority against the respondent and has not been referred to in the judgment of the lower Appellate Court. The same view was taken in Ayissa v. Lakshmana Prabhu 9 I.C. 795 and the following observation is made in the course of the judgment. 'This Court has more than once held that a decree in favour of a party with regard to property does not by itself stop the running of limitation when the property continues to be in the possession of the defendant. It is, therefore, possible that, though the former suit was not barred when it was instituted, the present suit may be barred by limitation.' I may observe that no distinction is to be found in this judgment between a declaratory decree and a decree for possession.
14. In Akbar v. Tabu (1914) 22 I.C. 805 the Punjab Chief Court followed Ayissa v. Lakshmana Prabhu 9 I.C. 795. The question arose in reference to adverse possession of a co-sharer. It was found that the plaintiff was in exclusive possession but it was contended on behalf of the opposite party that there was a break in the adverse possession as a result of the decree which negatived the plaintiff's right. The court in dealing with this contention said that a decree in favour of the defendants 'not accompanied by actual effective assertion of rights and taking of possession of those rights' was of no avail to them.
15. Hans Raj v. Maulu (1921) 63 I.C. 881 is a recent decision of the Lahore High Court, and though it is not quite in point it is useful as containing that court's approval of the passage in Akbar v. Tabu (1914) 22 I.C. 805 where relying upon Ayissa v. Lakshmana Prabhu 9 I.C. 795 the learned Judges laid down the proposition that a mere bringing of an action and a judgment thereon not accompanied by an entry does not break the continuity of adverse possession.
16. I have referred to the last two cases because the view taken by the Madras High Court was accepted in them.
17. The proposition set forth above may be inferred from the following passage, in the judgment of Srinivasa Aiyangar, J. at page 657 of Vyapuri v. Sonnmma Bai Ammani 9 I.C. 795. 'A simple suit for declaration of the mortgagee's right when such a right is denied by the trespasser may probably be brought, but that is a proceeding which the mortgagee is not bound to take, and a decree in such a suit cannot save the rights of the mortgagee from becoming barred, if otherwise they would be'.
18. Passages from certain other judgments of this Court have been relied upon by the appellant in order to show that the same inference can be drawn from them. But I do not propose to refer to them as the cases containing the said passages are not direct authorities on the point and as moreover in the cases that have been already referred to the question has been considered and decided.
19. Both on principle and on authority I am of the opinion that the 1st defendant is bound to succeed and my judgment is therefore for him. I would allow the appeal, set aside the decree of the lower Appellate Court and dismiss the plaintiff's suit for possession.