1. In this case the plaintiff is the appellant before me. The suit was filed to recover certain lands which were originally service inam lands attached to office of karnam and were enfranchised by-Government. The Subordinate Judge found that item No. 1 had been held adversely by the defendants from before 18S9 and as to items Nos. 2 and 3 that the defendants were, holding them adversely for at least 20 years before suit. On these findings he held that the suit is barred by limitation. The plaintiff files the second appeal.
2. The enfranchisement was effected by Government in 1906, the title-deed, Ex. B, being dated December 2, 1906, and the present suit was filed on June 26, 1918. If the plaintiff gets a fresh cause of action from the date of the enfranchisement by Government, there is no doubt that the plaintiff's suit is not barred. The Privy Council have now held that enfranchisement constitutes a fresh grant. If the plaintiff obtained the title in 1906, free of the. prior adverse possession, then Ids suit is not barred. The point in appeal thus reduces itself to the question whether when the Crown makes a grant at a time when the defendant was already in adverse possession for less than 60 years, what adverse possession counts in a suit by the grantee. If the prior adverse possession would not be counted against the grantee, then the period would be 12 years from the date of the grant. This is the view now pressed before me by the appellant. The other view is that the preceding adverse possession should count against the plaintiff and if the period of prior adverse possession exceeded 12 years the suit is barred; in other words, the moment the grant is made by the Crown the title is extinguished subject to the possibility of obtaining peaceful possession (vide below). It is claimed by the respondent that the latter view is supported by Jagadindra Nath Roy v. Hementa Kumari Debi 32 C. 129 : 8 C. W.N. 809 : 6 Bom. L.R. 765 : 1 A.L.J. 585 : 31 I.A. 203 : 8 Sar. P.C.J. 698 (P.C.). The point was not directly discussed in it but it was held g that the period of 60 years under Article 149 does not avail the grantee from the Crown and, therefore, the period of limitation was only 12 years. It was held that the suit was not barred as the plaintiff was a minor and the adverse possession began in his time. I think the case is not conclusive on the point. Another case relied on by the respondent is Gunga Gobind Mundul v. Collector of the 24-Pergunnahs 11 M.I.A. 345 : 7 W.R.P.C. 21 : 1 Suth. P.C.J. 676 : 2 Sar. P.C.J. 284 : 20 E.R. 131. This case also does not seem to me to be conclusive. The respondent next relies on a case in Municipal Commissioners for the City of Madras v. Sarangapani Mudaliar 19 M. 154 : 6 Ind. Dec. (N.S.) 812. All that was held there was that the period of sixty years cannot be taken advantage of by a Municipality. But assuming it is 12 years, from what time that should be computed was not discussed in it. The same remarks apply to Pullanpally Sankaran Nambudri v. Vittil Thalokat Mahomed 28 M. 505 : 15 M.L.J. 416. The actual decision went off on a ground other than limitation. Though these cases are not clear in favour of the respondent, the case in Annada Mohon Roy v. Kina Das supports his contention and I do not-see why, on principle, the defendant's adverse possession prior to the grant from the Crown is terminated by the grant and cannot be tacked on to later adverse possession after the grant. If such prior adverse possession was for a period of more than 12 years, there is no need to tack it on to the later adverse possession and we would think the assignee's title is extinguished if he cannot get peaceable possession and has to sue to recover possession. This view is supported by Doe v. Morris (1935) 2 Bing. (N.C.) 189 : 132 E.R. 75 : 2 Scott 276 : 1 Hodges 215 : 4 L.J.C.P. 285 42 R.R. 587. The respondent also refers to a case in Emmerson v. Maddison (1906) A.C. 569 : 75 L.J.P.C. 109 : 95 L.T. 568. It seems to me that this case lays down the correct principle in such matters. In such a case if the Crown takes peaceable possession from the trespasser and then hands it over to the grantee and the grantee enters into possession the case does not present any difficulty. The long possession of the trespasser short of 60 years does not avail him. Even if the Crown does not obtain possession, if the grantee from the Crown is able to get peaceable possession it may be that such possession will be upheld against a trespasser in a suit by the trespasser and it may not be correct to say strictly that the grantee's title is extinguished immediately on the making of the grant. But where the grantee could not obtain peaceable possession and has to resort to a Court of Law then I do not see how an exception can be made to the general principle of limitation and cut up the defendant's adverse possession into two parts, the portion prior-to the grant and the portion after the grant, the former being unavailable to the defendant; and yet this seems to be the view taken in Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783. In that case the grant from the Crown was in 1911. The defendant was in adverse possession from 1905 and it was held that the period prior to 1911 could not be added to the period after 1911. It is true that case differs from the case before me in the fact that there the period prior to the grant was less than 12 years whereas in the case before me it is more than 12, but I do not see how this makes any difference. It seems to me the case in Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783 is opposed to all established principles of law and is not correctly decided. I am informed a Letters Patent Appeal against the decision was dismissed without notice to the respondent. In my opinion, the ease requires re consideration. Another case relied on by the appellant is Krishna Sastri v. Singaravelu Mudaliar 91 Ind Cas. 1300 : 48 M.L.J. 470 : (1925) M.W.N. 218 : A.I.R. 1925 Mad. 780 : 48 M. 570. The actual decision itself is capable of explanation and of being distinguished. In that case, the plaintiff was not the grantee from the Crown. The grantee seems to have somehow got peaceable possession and the trespassers who had previously been in possession had to bring the suit, the grantee being the defendant. The case may be regarded as correctly decided with reference to observations in Emmerson v. Maddison (1906) A.C. 569 : 75 L.J.P.C. 109 : 95 L.T. 568 but some of the observations in the case are more in consonance with Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783 and I cannot agree with them. For instance, at page 475 Page of 48 M.L.J.-[Ed.] it is said 'the grant of a new title which could be questioned by any outsider who had trespassed on the property would be meaningless.' If the trespasser had been in possession for more than 12 years and sticks to the possession, that is, if he succeeds in preventing the Government or the grantee from getting peaceable possession, I do not see why his questioning the new title should be meaningless. But apart from the sentence seeing that the grantee got possession and was defendant, the decision itself need not to be attacked. I do not see my way to distinguish Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783. It is inconsistent with Annada Mohon Roy v. Kina Das . If Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783 is correct, this appeal must be allowed. But I do no think Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : 46 M.L.J. 482 : 34 M.L.T. 234 : 19 L.W. 663 : (1924) M.W.N. : A.I.R. 1924 Mad. 783 is correct and I think this appeal ought to be dismissed. I, therefore, refer this case to Bench of two Judges.
This second appeal coming on for hearing before this Bench in pursuance of the Order of Reference dated 28th April, 1925, the Court delivered the following
1. This case has been referred to this Bench by one of us and th6 arguments on both sides have been dealt with in the order of reference. It will, therefore, be unnecessary to repeat this in detail. The reference was rendered necessary on account of the decision of Wallace, J. reported as Gowrikantam v. Ramamurthy 80 Ind. Cas. 557 : A.I.R. 1924 Mad. 783 in which he held on the authority of the Privy Council decision reported as Venkata Jagannadha v. Veerabhadrayya 61 Ind. Cas. 667 : 30 M.L.T. 14 : 48 I.A. 244 (P.C.) that unless the Government had at the time of resumption no right to resume the first defendant has no case; that is to say, that although there might have been 12 years' adverse possession against the grantee, such adverse possession could not be effective when there was a further grant by the Government before the right of Government had been lost by prescription. In coming to this conclusion the learned Judge appears to have relied on a sentence in the judgment of Ayling, J. In Krishna Sastri v. Singaravelu Mudaliar 91 Ind. Cas. 130 : 48 M.L.J. 470 that is the grant of a new title which could be questioned by any outsider who had trespassed on the property would be meaningless, but we may observe that that sentence merely relates to the validity of the title conferred by the grant and has no reference to the question of possession. In the present case it would, no doubt, have been open to Government to have asserted its title and resumed possession from the defendant and given possession to the grantee. That has not been done. The Government is no party to the suit. As against the plaintiff there has been adverse possession for over 12 years and such adverse possession was also adverse to the Government and the question of whether such possession gives a good title against plaintiff has been definitely decided in the affirmative in Kuthaperumal Rajali v. Secretary of State for India 17 M.L.J. 174 and Ananda Mohan Roy v. Krishna Doss : AIR1924Cal394 , These two decisions are also in accordance with the principle laid down in Jagadindra Nath Roy v. Jiementa Kumari Debi 1 A.L.J. 585 : 31 I.A. 203 : 8 Sar. P.C.J. 698 (P.C.), Municipal Commissioners for the City of Madras v. Sarangapani Mudaliar 6 Ind. Dec. 812 and Pullanpally Sankaran Nambudri v. Vittil Thalokat Mohamed 15 M.L.J. 416. We accept these authorities in preference to the decision of Wallace, J., in Gowrikantam v. Ramamurthy 19 L.W. 663 : (1924) M.W.N. and accordingly dismiss the second appeal with costs.