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V. Ry. Hari Sahib and anr. Vs. Ry. Sivaji Raja Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad61; 97Ind.Cas.783
AppellantV. Ry. Hari Sahib and anr.
RespondentRy. Sivaji Raja Sahib and ors.
Excerpt:
- - on the first point, it is argued that, because the present plaintiffs were party defendants in two prior suits in which they failed to obtain the relief which they now seek, the question is concluded and they cannot raise it again. although it had been declared in these suits that plaintiffs were entitled to the suit property, it is argued for the appellants that the possession of the receiver must be added to their previous adverse possession and that thereby their title by prescription was perfected, but it is well understood that the possession of a receiver appointed by court is possession of the person who is found to he the true owner and consequently the possession of the receiver must have been on his behalf......as regards limitation, it is admitted that the defendants were in adverse possession of the suit property for over ten years until these suits were filed. then a receiver was appointed and subsequent to the suits, possession was handed over to the plaintiffs. although it had been declared in these suits that plaintiffs were entitled to the suit property, it is argued for the appellants that the possession of the receiver must be added to their previous adverse possession and that thereby their title by prescription was perfected, but it is well understood that the possession of a receiver appointed by court is possession of the person who is found to he the true owner and consequently the possession of the receiver must have been on his behalf. it would be impossible to hold.....
Judgment:

1. Only two points are argued in these appeals: (1) res judicata and (2) limitation. On the first point, it is argued that, because the present plaintiffs were party defendants in two prior suits in which they failed to obtain the relief which they now seek, the question is concluded and they cannot raise it again. One of these two suits was by a coparcener to recover his share of the family property against Defendants Nos. 1 and 2 the alienors of the present plaintiffs. In that suit, the plaint property was excluded from partition and consequently it would not have been possible for the plaintiffs to get a share in the property excluded from partition under that decree. They were only defendants in that suit and as the property in which they were interested was not partitioned, they could not get their share under the decree. The second suit was by another alienee of the other portion of the property which the plaintiffs claim but it cannot be contended that, because one alienee brings a suit to recover property demised to him by members of a joint family, another alienee is bound to enforce his remedy in that same suit. In these circumstances, there can be no question of res judicata.

2. As regards limitation, it is admitted that the defendants were in adverse possession of the suit property for over ten years until these suits were filed. Then a receiver was appointed and subsequent to the suits, possession was handed over to the plaintiffs. Although it had been declared in these suits that plaintiffs were entitled to the suit property, it is argued for the appellants that the possession of the receiver must be added to their previous adverse possession and that thereby their title by prescription was perfected, but it is well understood that the possession of a receiver appointed by Court is possession of the person who is found to he the true owner and consequently the possession of the receiver must have been on his behalf. It would be impossible to hold otherwise for, if it were held, that the receiver holds possession on behalf of a trespasser and not on behalf of the true owner, such possession being under orders of Court abetting a trespass and that can certainly never be done. As the possession of the defendants was interrupted, they have not acquired title by prescription and the present suits are not barred by limitation.

3. The appeals are accordingly dismissed with costs.


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