Krishnaswami Aiyangar, J.
1. The plaintiff is the appellant. The property in dispute is a house in Allipuram, a suburb of Vizagapatam. The original owner was one Sekharamantri Appalaswami, the father of the first defendant in the suit and the first respondent in the second appeal. Sekharamantri Appalaswami was indebted to the father of respondents 2 to 5, one Kanti Mahanti Appalanarasayya. For the recovery of the debt, K. Appalanarasayya instituted a suit against Appalaswami, and in execution of the decree obtained therein purchased the suit house on 7th January, 1916, and obtained a sale certificate on 2nd July, 1920. Though he thus obtained a perfect title to the house, he never reduced it to possession either by process in execution or otherwise. S. Appalaswami and after him his son the first respondent have continued in undisturbed possession of the house. By the date of the suit, they had been in possession for over fifteen years, a period sufficiently long to give them a prescriptive title under Article 144 of the Indian Limitation Act against K. Appalanarasayya or any one claiming under him, or indeed against all the world. The plaintiff derives his title to the suit house from K. Appalanarasayya. He had advanced money on a mortgage of the house to the latter. On that mortgage the plaintiff instituted a suit and obtained a decree. In execution the plaintiff himself purchased the house on 6th September, l929, and a sale certificate was issued to him on 10th October, 1929. Resisted in obtaining possession by the first defendant, he filed an application to remove the obstruction but the application was dismissed. Within one year of this adverse order, the plaintiff instituted the present suit to set aside the order, and to recover possession of the house. The claim is resisted by the first defendant, on the ground that the appellant's title assuming he had a good title has been lost by adverse possession. Seeing that on the findings of the Courts below the first respondent and his father have been in continuous and exclusive adverse possession of the property, the. appellant would prima facie be barred. Acting on this view the Courts below have dismissed the suit, overruling a contention of the appellant advanced with the object of getting over the bar Of limitation.
2. To appreciate that contention a few facts are necessary. In 1922, there was a Town Survey of Vizagapatam and its suburbs, in one of which namely Allipuram, we have said that the suit house is situate. The site of the house was demarcated as No, 967 belonging to K, Appalanarasayya, who as we have already mentioned, had purchased the property in Court auction in 1916, and had accordingly a perfectly good title at the time. This survey number as well as certain others formed the subject-matter of a survey dispute as shown by the order dated 29th November, 1922, of the appellate survey authority in land complaint Appeal No. 126 F.B. It may at this stage be mentioned that the survey was conducted under the provisions of the Survey and Boundaries Act (IV of 1897). It is found from the appellate order aforesaid that the appellant was one Mantri Lakshminarasimham. There were four respondents and two of them were K. Appalanarasayya and Section Appalaswami. It looks as if Survey No. 967 was claimed by the appellant as against K. Appalanarasayya and it does not appear that there was any dispute between K. Appalanarasayya and Section Appalaswami inter se as regards the suit house. The former produced his sale certificate of 1920, and on its strength he was recognised as the owner, and registered as such. The latter whose adverse possession was at the time only six years old could not with any chance of success object to the title of the former and for that reason apparently, acquiesced in the decision without raising any objection then or thereafter either within the time limited by Section 13 of the Act even afterwards. The survey order accordingly became final under Section 12(3) and conclusive under Section 13.
3. It is contended for the appellant that the survey decision by reason of its statutory attributes has the effect of dissipating and putting an end to the prior title, if any, in the unsuccessful party, inclusive of such growing but immature right arising out of a possession for less than the statutory period. There can be no doubt, that such a possession is not to be treated as carrying no legal consequence, as the law invests the possessor with certain limited rights not only as against a stranger but even against the true owner. On the argument of the appellant the period of adverse possession prior to the order must be ignored altogether, and is not to be tacked on to the later period. The order of the survey authority, it is urged, has the effect in law of interrupting the continuity of the possession, and creating or recognising on its date a complete title, which can only be displaced by a fresh period of adverse possession for the statutory period to be counted from the date of the order. This is a question on which there has been a divergence of judicial opinion due to a decision of a Division Bench in Azhagaperumal Pillai v. Rasa Pillai (1931) 62 M.L.J. 399, which strikes a note, it seems to us, different from that involved or expressed in the other cases of this Court including the Full Bench decision in Muthirulandi Poosari v. Sethuram Aiyar (1918) 36 M.L.J. 356 : I.L.R. 42 Mad. 425 . We shall revert to this question a little later.
4. It is to be observed that the finality attached by Section 12(3) of the Act to a survey officer's decision, is a finality only for the purposes of the survey operations and the survey records compiled as a result of those operations. It has no further efficacy, and does not affect title, in particular: Vide Chinna Venkatrayadu v. Ramamurthi (1920) 40 M.L.J. 149 : I.L.R. 44 Mad. 340. But the provisions of Section 13 have a more far reaching effect and it is settled that if a case fell within the section, and the suit contemplated by it is not instituted within the time limited, the survey order becomes decisive of even a question of title. But to have this consequence it must be clearly shown that the conditions of the section have been fully satisfied. In the present case we are of opinion that they are satisfied.
5. Section 13 is as follows:
Any party to a boundary dispute before the Survey Officer, and any party to an appeal preferred under Section 12 or to whom notice of such appeal is given, and any person claiming under any such party, deeming himself aggrieved by the order of the Survey Officer, or by the decision of the appellate authority as the case may be, may, subject to the provisions of Parts II and III of the Indian Limitation Act, 1877, institute, within the period of one year from the date of such order or decision, a suit to establish the right which he claims in respect of the boundary of the property surveyed : provided that, subject to the result of such suit, if any, such order or decision shall be conclusive as between the parties to the dispute or to the appeal, including those to whom notice of such appeal has been given, and those claiming under such parties or any of them
6. The section makes it obligatory on the following descriptions of persons who deem themselves aggrieved by the order, to institute a suit within the period of one year to establish their claim on pain of being for ever precluded from agitating it by suit or otherwise. They are:
(i) A party to a boundary dispute
(ii) A party to an appeal preferred under Section 12, and
(iii) A person though not impleaded as a party to the appeal has yet had notice of the appeal served on him.
7. The effect of the section is to treat class (i) as on the same footing as class (ii), as service of the notice of appeal makes them in fact, though not in form, parties to the appeal. If we refer to Section 12, it is clear a right of appeal is conferred on a registered holder the boundaries of whose holding is affected by the order of the survey officer. If the boundary is disputed before the officer, the order settling the dispute is made conclusive as between the disputants by force of Section 13 unless challenged by suit. Even where no dispute had been brought up before the officer and the officer had merely directed the boundary to be laid down as pointed out by the registered holder or his agent, a right of appeal is given to a neighbouring holder on the issue of the notification contemplated by Section 11(4). In this case, notice is directed by Section 12(1)(c) to issue 'to all registered holders, the boundaries of whose holdings may be affected by the proceedings in appeal.' Both classes of persons, namely those originally impleaded by the appellant, and those others to whom notice is issued by reason of the fact that the boundaries of their holdings may be affected by the result of the appeal, are bound by the order passed by the appellate authority. This is the language of Section 13.
8. In the present case, both K. Appalanarasayya and Section Appalaswami were made parties to the appeal at the outset and we must presume that notice went to the latter in the appeal, and he was aware of the proceedings when they went on, and of the result after they ended. It is clear that the interests of these two individuals conflicted, as Appalaswami was holding possession adversely to K. Appalanarasayya, though it is equally clear that no actual conflict or dispute between them was brought up for determination by the appellate authority. On the contrary it is the claim of the appellant alone who apparently set up a right as against K. Appalanarasayya or perhaps even against all the respondents as a body, that was determined by the order. If the rule of res judicata as between co-defendants, is to be applied, we should be inclined to hold that the order in question cannot be taken to have conclusively determined the question of title as between the two respondents namely K. Appalanarasayya and Section Appalaswami as the adjudication on the point was not necessary forgiving relief to the appellant. None of the respondents had a case which can be said to have been common to him and the appellant, so that the decision could be said to have settled a dispute latent at least in character as between the respondents though it did not come up in a practical form before the survey authority. Even apart from this consideration it seems to us that we shall not be warranted in applying the rule of res judicata to the decision of a survey authority under the Act especially after the pronouncement on the point by the Privy Council in Radhakrishna Aiyar v. Sundaraswamier (1922) 43 M.L.J. 323 : I.L.R. 45 Mad. 475, where their Lordships cited with approval the following passage in the judgment of the High Court, namely:
The answer is that the general doctrine of res judicata is not in question, but the application of the special rule stated in Section 52(3), Estates Land Act...
9. The language of the section has therefore to be construed without reference to the body of rules evolved in relation to the doctrine of res judicata as applied to the decision of a Civil Court. From this standpoint it is only necessary to enquire whether K. Appalanarasayya and Section Appalaswami were parties to the appeal within Section 13, and not whether there was any active contest between them. Once it is shown, as it has been shown in this case, that Section Appalaswami was a party, the order is conclusive against him even though he had not actively resisted K. Appalanarasayya's claim. There is no hardship or injustice involved in this view being accepted. For it is difficult to imagine that a person being a party to the appeal and not realizing the nature or the consequence of a decision, if it went against him. If in spite of this knowledge, he chooses to keep quiet without questioning it by suit, he must take the consequence for which he alone is responsible.
10. It therefore becomes necessary to decide for the disposal of this second appeal the question to which we have adverted above. It will be enough to refer to three decisions of this Court to indicate the reason which has prompted us to refer the consideration of the question to a Full Bench. We may at once say that our inclination is to interpret the Full Bench decision in Muthirulandi Poosari v. Sethuram Aiyar (1918) 36 M.L.J. 356 : I.L.R. 42 Mad. 425 , in favour of the appellant, that is to say, in support of the view that the adverse possession of the unsuccessful claimant during the period anterior to the decision of the survey authority is to be ignored as of no legal consequence. In the case before the Full Bench, the plaintiffs whose title to the property in dispute had been established by a decree of the Civil Court in 1900 continued in undisturbed possession till 1913 when on account of the defendants attempting to interfere with their possession they instituted the suit for an injunction against them. It appeared that sometime between 1904 and 1906 in the course of a survey conducted under the Act, the survey officer had passed an order demarcating the land as belonging to the defendant's father in spite of the plaintiff's opposition. The possession of the property however continued with the plaintiffs undisturbed by the defendants notwithstanding the survey order. The District Judge reversed the judgment of the District Munsif who had decided in favour of the defendants and held, following Krishnamma v. Achayya I.L.R.(1879) 2 Mad. 306, that the plaintiffs were entitled to succeed as the demarcation of boundaries by the survey officer did not interfere with plaintiffs' continued enjoyment from even before the date of the order. A second appeal was preferred and came before Phillips and Seshagiri Aiyar, JJ., who considered it necessary to refer the following question to the Full Bench namely:
When a plaintiff's claim has been disallowed under the Surveys and Boundaries Act IV of 1897, but he has been in possession of the property, does the decision of the survey officer operate as res judicata in a subsequent suit for possession?
11. This reference was rendered necessary as in the view of the referring Judges the decision in Krishnamma v. Achayya I.L.R.(1879) 2 Mad. 306, was felt to be of doubtful authority. In his order of reference, Phillips, J., expressed his inability to accept the contention based on this decision, that the plaintiffs' title could be supported on the strength of their adverse possession. If their possession both prior and subsequent to the survey order were taken into account, it was for more than the required duration, and the argument would have prevailed. But the learned Judge was of opinion that such addition was not permissible, as the survey officer's order had the effect of interrupting the continuity of the possession which the plaintiffs had held. The other referring Judge, Seshagiri Aiyar, J., appears to have Shared the same opinion as in any other view it is not possible to understand his observation that the defendants acquired a title to the property on the date of the Survey officer's demarcation. The italics are ours and the words italicized involve the proposition that the survey order had the effect of creating a new title requiring to be displaced by a sufficient period of adverse possession to commence after its date.
12. The question propounded for answer by the Full Bench did not in terms expressly refer to the point adverted to above. None the less it is clear that the prior possession of the unsuccessful party which had continued undisturbed even after the order was obviously the ground of the doubt which called for solution. The answner was given by Wallis, C.J., on behalf of the Full Bench in a somewhat terse statement that the order
if not reviewed by the appellate authority or questioned by suit as provided in the section was conclusive as to the rights of the parties, and none the less so because the unsuccessful party who was in possession at the date of the order was not subsequently ousted from possession.
13. There is no specific mention here of the effect of the survey order on the running of adverse possession, but it is equally certain that there is nothing to suggest a dissent from the opinion of the referring Judges. The continuance of the possession in the unsuccessful party was held not to affect the conclusiveness of the order against him. When the second appeal came again before the Division Bench after the return of the answer by the Full Bench, the Court reversed the judgment of the District Judge, and negatived the claim of the plaintiffs. This result could have been arrived at only on the footing that the Full Bench had sanctioned the view of the referring Judges, viz., that the survey officer's order brought about a break in the continuity of the adverse possession which should therefore be dated as from the date of the order and not earlier. It was in this sense Devadoss, J. understood the principle underlying the section, as interpreted by the Full Bench, and we think there is a great deal of force in it as the opposite view would tend to detract from the conclusiveness of the order, enacted by the section. His judgment was, however, upset on appeal under the Letters Patent, by a Bench of two Judges, Reilly and Ananthakrishna Ayyar, JJ. who took a different view of the ruling, supporting themselves by a pronouncement of Ramesam, J. in Kuppuswamiv. Venkataswami (1922) 16 L.W. 99,. and also by an unreported decision of Benson and Krishnaswami Ayyar, JJ. in S.A. No. 1102 of 1909. They observed:
Neither the decision of the survey officer, nor the planting of stones in accordance with it in proceedings under the Act ipso facto dispossesses any party, nor could it make a legal break in existing possession so as to render ineffective for purposes of limitation any adverse possession running at its date.
14. To our mind it appears, if we may say so with respect, that this expression of opinion is contrary to the view of the Full Bench, whatever merit there may be in the reason adduced by the Court, namely, that it would be very extraordinary if the survey officer's decision could have an effect denied to the decision of a Civil Court as in Subbayya Pandaram v. Mohammad Mustapha Maracayar (1933) 45 M.L.J. 588 : L.R. 50 IndAp 295 : I.L.R. 46 Mad. 751 , and Singaravelu Mudaliar v. Chokkalinga Mudaliar : AIR1923Mad88(1) .
15. In a later decision reported in Ramamurthi v. Gajapati Rqju (1932) 64 M.L.J. 361 : I.L.R. 565 Mad. 366, the view which prevailed in Azhagaperumal Pillai v. Rasa pillai (1931) 62 M.L.J. 399, was not accepted. The matter first came before Spencer, J. sitting as a single Judge in Second Appeal, from whose decision a Letters Patent Appeal was preferred which came up before a Division Bench composed of Waller and Pandalai, JJ. who differed. The main question on which the difference of opinion arose was as to what should be considered as a boundary dispute within the meaning of the Act. With reference to the point now under consideration after referring to the Full Bench decision, Waller, J. expressed himself emphatically as follows:
The referring Judges in that case were definitely of opinion that the decision of the survey officer made a break in the adverse possession and that the period before the decision could not be tacked on to the period after it, so as to make the adverse possession continuous. And the Full Bench did not dissent from their opinion.
16. Pandalai, J. favoured the other view, accepted in Azhagaperumal Pillai v. Rasa Pillai (1931) 62 M.L.J. 399, holding that a survey officer's decision as to boundary does not have the legal effect of terminating the possession of the man who was in possession or of breaking the running of his possession for purposes of limitation. On a reference to a third Judge, Wallace, J. endorsed the opinion of Waller, J. in preference to that of Pandalai, J. and animadverted on the contrary decision of the Division Bench, as not in accordance with the effect of the Full Bench ruling which according to him,
held that the decision of a survey officer is a decision that the successful party is in possession even though the unsuccessful party was really in possession, and that the decision estops the unsuccessful party from urging later on that he was in possession.
17. An attempt at reconciliation of the conflicting views has been made by Wadsworth, J. in Achutharamayya v. Soorappayya : AIR1939Mad61 in which he has also endeavoured to support the decision in Azhagaperumal Pillai v. Rasa Pillai (1931) 62 M.L.J. 399, by suggesting that the survey officer in that case had not determined any question of possession. According to the learned Judge, the survey officer's decision can be regarded as final only to the extent to which it purports to decide the rights of the parties, the governing factor being the actual decision. On this view it will be necessary in every case to enquire whether the decision of the survey officer was based on possession or on title. If it is based on an adverse finding against the title of the unsuccessful party on a mere consideration of the documentary evidence of ownership, that finding should not according to the learned Judge, stand in the way of his adding up his possession anterior as well as posterior, so as to make up the period required by the Limitation Act for a prescriptive title. With very great respect, we feel that the survey officer is not called upon to give an express decision on either title or possession. The Court is merely called upon to interpret the conclusiveness attributed to a demarcation of boundary by an officer charged with the duty of deciding a question of boundary only. An analysis of the basis of his decision, leading to a difference in the effect of the decision on the rights of the parties does not appear to be warranted by anything in the language of the section. We regret to say that we are not convinced of the correctness of the reasoning either on which the learned judge has supported the decision in Azhagaperumal Pillai v. Rasa Pillai (1931) 62 M.L.J. 399, as not being really inconsistent with the Full Bench ruling. However that may be, we think that the time has arrived for the conflict of opinion noticed above being resolved by a reference to the Full Bench of the following question:
Whether the order of a survey officer under Section 11, or of the appellate authority under Section 12 of the Madras Act IV of 1897 has the effect of causing a break as on the date of the order, in the continuity of the adverse possession held by the unsuccessful party, so as to preclude his making use of the period of his prior possession to make up the period of twelve years required by the Limitation Act to perfect a title by adverse possession?
18. (This second appeal came on again for hearing, before the Full Bench, as constituted above.)