1. The plaintiff is the appellant. She filed the suit for declaration of little to the suit property and for recovery of possession of the same from the defendant. Her case was that the suit property originally formed part of a Devadasi Maniba and that she purchased it after it had been enfranchised under Exs. A-3 and A-7 in the year 1960 by virtue of a sale deed. Ex. A-1 dated 17-4-1961 from the last service-holder Thangammal. The complaint of the plaintiff is that the defendant is asserting title to the suit property and is resisting the claim of the title of the plaintiff. The defendant resisted the suit contending that the suit land was originally waste that it was reclaimed by the predecessors-in-interest and that they had been in possession right through. It is his definite case that neither the plaintiff nor her vendor was in possession of the suit property at any time. He claimed that the suit property came to be allotted to him in a partition in his family. He also claimed that he had acquired title by adverse possession to the suit property.
2. The trial court held that the suit property was a Devadasi Manibam, that there was alienation by the last service-holder after the property had been enfranchised in the year 1960 and that therefore the plaintiff's title to the suit property should be upheld. The trial court also held that the defendant had not perfected title by adverse possession, as the documents produced in the case showed that the defendant's possession started only from 1942. In the result the trial court decreed the suit as prayed for by the plaintiff.
3. The lower appellate court agreed with the view of the trial court that the suit property formed part of a Devadasi Manibam, that it had been duly enfranchised under Exs. A-3 and A-7 and that the plaintiff got valid title under Ex. A-1 the sale deed executed by the last service holder, Thangammal. The lower appellate court, however, disagreed with the trial court and held that the defendant had acquired title by adverse possession as against the service-holder, as the documents produced in the case clearly established that the defendant continued to be in exclusive possession from the year 1942.
4. The plaintiff-appellant contends before me that the finding of the lower appellate court that the defendant has acquired title by adverse possession cannot be sustained in law. The learned counsel for the appellant submits that the lower appellate court has overlooked the significance of the enfranchisement proceedings that took place in 1960 under Ex. A-3 and A-7 that the enfranchisement by the Government should be treated as a regrant, that any prescriptive title commenced and perfected when the service tenure was subsisting could be of no avail and that the view of lower appellate court that the long continued enjoyment of the defendant from 1942 was sufficient to destroy the title of the plaintiff based under Ex. A-1 was erroneous. The learned counsel placed reliance on two decisions of this court. In Mantripragada Gourikantam v. Mantripragada Ramamurthi, 46 MLJ 482 : AIR 1924 Mad 783 Wallace. J. considered a case which was somewhat similar to the case on hand. In that case the first defendant was in exclusive possession of the service inam lands from 1905. The inam was enfranchised in 1911 and a title deed was then issued in favour of the plaintiff. Even after the enfranchisement the first defendant continued in exclusive possession. The learned Judge expressed the view that the enfranchisement of service inam and the issue of inam title deed created a new title in the grantee and that therefore the period of exclusive possession of the first defendant from 1905 to 1911 would not could as adverse possession against the plaintiff as regards the title conferred by the inam title deed, provided that the Government's right to regrant the lands in 1911 was not barred.
5. In Rasa Koundan v. Janaki Ammal, : AIR1951Mad333 Satyanarayana Rao and Viswanatha Sastri, JJ. considered the scope and effect of the enfranchisement of a Devadasi service inam. In that case the service inam was enfranchised in 1931 under the provisions of the Madras Hindu Religious Endowments Act (Act V of 1929) by disannexing the inam from the service and granted a title deed to the plaintiff. The plaintiff's suit for possession was resisted by the defendants on the ground that they had acquired title by adverse possession as against the inamdar, even prior to 1931. But it was specifically found on the facts of that case that the defendants had not acquired title as against the Government by being in adverse possession for a period of sixty years. On those facts the question that was considered by the Bench was whether the acquisition of title by adverse possession as against the inamdar by the defendant before the inam was enfranchised in 1931 would avail the defendants and whether the plaintiff could recover possession of the property based on the regrant made in the year 1931. Satyanarayana Rao, J. expressed the view that if the inamdar had acquired fresh title in the enfranchisement proceedings of 1931, the defendant's prescriptive title which commenced and which was perfected against the inamdar when the service tenure was subsisting would be of no avail as it was not that title on which the plaintiff was relying to seek to recover possession of the property. Viswanatha Sastri, J. in his concurring judgment entirely agreed with the view of Wallace J. in 46 MLJ 482 : AIR 1924 Mad 783 and held succeeded in establishing that they had perfected title by adverse possession against the Government for a period of sixty years prior to the enfranchisement, they could not question the title of the plaintiff who sought to recover possession of the property on the basis of a fresh grant by way of an inam title deed. The learned Judge referred to the following observations of Devadoss, J. in Ramanna v. Venkatanarayana : AIR1927Mad301 .
'When the Government resumes a service inam, all the interests of persons who have acquired title prior to the date enfranchisement cease to have any effect and the person in whose name title is made out after enfranchisement gets it free of the interest which other persons had in the property before the date of enfranchisement',
and observed that the statement of the law as laid down by Devadoss, J. should he qualified to some extent with reference to cases where third persons had acquired a prescriptive title to the lands by adverse possession as against the Government itself for over sixty years prior to the enfranchisement proceedings.
6. In this case, though there is a finding that the defendant has perfected title by adverse possession against the inamdar, there is finding that he has perfected title by adverse possession against the Government for a period of sixty years prior to the date of the enfranchisement. The decision in Gourikantam v. Ramamurti, 46 MLJ 482 clearly lays down that unless a person in occupation acquires title by adverse possession as against the Government for a period of sixty years he cannot resist the claim of possession by the erstwhile inamdar who had got an inam title deed issues after the enfranchisement of the inam. Though the lower appellate court has in more than one place stated that it is probable that the defendant was in occupation of the property for a period of sixty years prior to the date of the suit, there is no finding that the defendant has perfected title by adverse possession against the Government by being in possession for a period of sixty years. If the defendant had acquired title by adverse possession against the Government by being in adverse possession for a period of sixty years, then the Government would have lost title to the suit property and they would have no right to convey the property under an inam title deed; Hence, it has to be specifically found whether the defendant had perfected title against the Government by being in adverse possession for a period of sixty years prior to 29-9-1960 when the enfranchisement took place. I therefore consider it necessary to remit the matter to the lower appellate court for a fresh disposal of the appeal after giving a finding on the question whether the defendant had perfected title by adverse possession against the Government before 29-9-1960, the date of the enfranchisement of the inam.
7. The second appeal is therefore allowed and the matter is remitted to the lower appellate court for fresh disposal. The court-fee paid on the memorandum of second appeal will be refunded. There will be no order as to costs. No leave.
8. Appeal allowed.