Vally v. Achuthan Unni — 1965 DIGILAW 364 (KER)

JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. This appeal is filed by defendants 1 and 2 against the decision of a learned Judge of this Court reversing the concurrent decisions of the courts below dismissing the suit filed by the respondent. The decision of the learned Judge is reported in Achuthan Unni v. Vally, 1962 KLT 1010 = 1962 KLJ 400 . 2. The facts relevant for deciding this appeal are stated below. The respondent filed the suit for declaration of title and recovery of possession of the plaint item alleging dispossession by appellants 1 and 2 by their trespassing into the plaint item in the beginning of Medom 1124. The first appellant is the wife of the second appellant. The respondent is the owner of the properties comprised in survey Nos. 391/7, 391/8 and 391/9. Survey No. 391/7 lies to the south of survey No. 391/9. The second appellant is the owner of survey No. 391/10 which lies to the west of survey Nos. 391/7 and 391/9. The first appellant is the lessee in possession of survey No. 391/6 which lies to the south of survey No. 391/7. The portion alleged to have been trespassed is along the western and the southern boundaries of the respondent's properties comprised in survey Nos. 391/9 and 391/7. The area trespassed into is about 1 and 1/8 cents of land in extent. 3. Appellants 1 and 2 while denying the trespass alleged, claimed title to the plaint item on the ground that it forms part of survey Nos. 391/10 and 391/6. The learned Munsiff held that the trespass has not been proved and that the respondent has not established a subsisting title, though the original title to the plaint item as part of survey Nos. 391/7 and 391/9 was with the respondent and that such title was even lost by adverse possession and limitation. The learned District Judge confirmed the decision of the Munsiff. 4. But the learned Judge of this Court held that the respondent's title and possession generally in respect of survey Nos. 391/7, 8 and 9 being admitted, it has to be presumed that the respondent has possession of those survey divisions in - their entirety, and that the onus is on the appellants to prove that they have been in adverse possession of the portion trespassed into for more than 12 years prior to the institution of the suit. 5. 391/7, 8 and 9 being admitted, it has to be presumed that the respondent has possession of those survey divisions in - their entirety, and that the onus is on the appellants to prove that they have been in adverse possession of the portion trespassed into for more than 12 years prior to the institution of the suit. 5. The appellants' advocate admits that the title to survey Nos. 391/7 and 391/9 is with the respondent and that the plaint item forms part of these two survey numbers. But he contended that since the suit is in ejectment the burden is on the respondent to prove a subsisting title and that the view taken by the learned Judge that the appellants have to prove their possession for a period of 12 years prior to the date of the suit is not correct. 6. In Para.3 of the plaint the plaintiff says: The above will show that the suit is one in ejectment on the allegation that the appellants have dispossessed the respondent and taken possession of the plaint item in the beginning of Medom 1124. The relief in the suit is for recovery of possession of the plaint item with past and future mesne profits from the appellants. 7. The casting of the burden of proof depends on whether the suit is governed by Art.142 or by Art.144 of the Indian Limitation Act of 1908. Art.144 is a residuary Article and applies to suits for possession of immovable property, if Art.142 does not apply. Art.142 would apply if the plaintiff while in possession of the property has been dispossessed by the defendant. In view of the allegation in the plaint extracted above, Art.142 is the Article that governs the suit. The law is well settled that if Art.142 governs the case the onus is on the respondent to show (1) that he has title to possession superior to that of the appellants, (2) that his possession was within twelve years of the suit or in other words, that he was in actual or constructive possession within 12 years of the suit. The respondent has therefore to prove not only his title but also that he had possession at some time within twelve years prior to the date of the suit. The respondent has therefore to prove not only his title but also that he had possession at some time within twelve years prior to the date of the suit. The burden of proving the date of dispossession lies on the plaintiff who in order to succeed must show that the dispossession was not prior to 12 years before the suit was filed. The rule is not different where the trespass by the neighbouring land owner is along the boundary of the adjoining property, and springs from or is related to a boundary dispute. The learned advocate for the respondent relied on the seventh proposition formulated in Vaidhyanathaswamy v. Lekshmi Amma 1962 KLT 577 . The proposition is stated thus at page 586: "If the suit is in reality one to settle a boundary dispute, though framed as for ejectment from an encroachment of a narrow strip of land at the verge of the mutual boundary, the land on either side being admitted to be in the possession of the respective landowners, the decision would depend on title unless the defendant proves his prescriptive title by adverse possession in regard to the encroached land. The law presumes that holdings of land are in accordance with the divisions demarcated by the Statutory Survey Authorities who are enjoined by law to incorporate subdivisions or other lawful variations in the holdings and keep, the Land Records up to date. Possession of land is therefore presumed to be coextensive with the relative survey divisions. The admission of possession of the plaintiff of his land will therefore be presumed to extend to every inch of the land in the relative survey division; and it would be for the defendant asserting a right contrariwise to prove that assertion. See Achuthan Unni v. Vally ( 1962 KLJ 400 ), Damodara Panicker v. Ayyappan Kutty (S. A. No. 870 of 1958, since reported 1962 (2) KLR 94) and the observations of the Privy Council in Maharajah Koowur Baboo v. Nitrasur Singh (8 MIA 199)." 8. In this appeal we are not concerned with the other propositions laid down in Vaidhyanathaswamy v. Lekshmi Amma 1962 KLT 577 as applicable to suits in ejectment and do not propose to deal with them. In this appeal we are not concerned with the other propositions laid down in Vaidhyanathaswamy v. Lekshmi Amma 1962 KLT 577 as applicable to suits in ejectment and do not propose to deal with them. Properties being generally denoted or identified by their survey demarcation numbers, in the generality of cases possession of properties may be determined on the basis of such numbers; but where the plaintiff himself alleges loss of possession, or admits dispossession, and seeks to recover possession, his suit is essentially one in ejectment, even though the dispute may involve the settlement of boundaries and not one for mere settlement of the intermediate boundary without an allegation of trespass or of dispossession and often on the contrary with an allegation of possession by both parties. In Maharajah Koowur Baboo Nitresur Singh v. Baboo Nand Loll Singh, 8 M. I. A. 199, which arose on account of disputes concerning the boundaries of two estates, Lord Justice Turner delivering the judgment of the Board observed at pages 220 and 221 as follows: "Again, their Lordships concur with the majority of the Sudder Court in thinking that the issue of possession is the first to be considered in this case, and that it is wholly independent of the boundary question. The appellant is seeking to disturb the possession, admitted to have existed for about eleven years, of Defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him (for that is the way in which the Regulation puts it - Bengal Regulation III of 1793, S.16) on a dispossession within twelve years next before the commencement of the suit; and, therefore, that he, or some person through whom he claims, was in possession during that period. No proof of anterior title, such as would be involved in the decision of the boundary question in his favour, can relieve him from this burden, or shift it upon his adversaries by compelling them to prove the time and manner of dispossession. The lands in question may have been part of Mouzah Gopaulpore, and as such may have been enjoyed by his ancestor, and yet he may have lost, by lapse of time, his right to recover them. The lands in question may have been part of Mouzah Gopaulpore, and as such may have been enjoyed by his ancestor, and yet he may have lost, by lapse of time, his right to recover them. Their Lordships, therefore, propose to consider in the first place, what evidence there is that the Appellant, or any person through whom he claims, was in possession of the lands in question at any time within twelve years next before the commencement of the suit." The above clearly establishes that even in respect of property close to the boundary if the plaintiff alleges possession and dispossession the burden is on him to prove possession within twelve years of the suit. 9. The decision in Damodara Panicker v. Ayyappan Kutty 1962 (2) KLR 94, cited by the learned Judge in Vaidhyanathaswamy v. Lekshmi Amma 1962 KLT 577 as an authority for the seventh proposition followed the decision in Lukhi Narain Jagadab v. Maharaja Jodu Nath Deo 21 Indian Appeals 39. This arose out of a suit for a declaration that a strip of ground about 80 acres in extent, lying on the eastern verge of his estate by name Argal formed part of that mouzah belonging to him. The area in dispute consisted admittedly of waste or jungle land and no evidence of possession was adduced by either side. The suit was dismissed. In appeal, Lord Watson observed at pages 43 and 44: "It is of frequent occurrence, especially in cases where the disputed line of division runs between waste lands which have not been the subject of definite possession, that no satisfactory evidence is obtainable. That circumstance cannot relieve the Court of the duty of settling a line, upon the evidence which is laid before it. The ordinary rule regarding the onus incumbent on the plaintiff has really no application to cases of that kind. The parties to the suit are in the position of counter claimants; and it is the duty of the Defendant, as much as of the plaintiff, to aid the Court in ascertaining the true boundary. Where any other rule recognised, the result might be that some boundaries would be incapable of judicial settlement." This case furnishes an instance of a boundary dispute as distinguished from a case of ejectment. Where any other rule recognised, the result might be that some boundaries would be incapable of judicial settlement." This case furnishes an instance of a boundary dispute as distinguished from a case of ejectment. The above passage does not lend support to the seventh proposition in the decision in Vaidhyanathaswamy v. Lakshmi Amma 1962 KLT 577 . The suit which gave raise to Lukhi Narain Jagadeb v. Maharaja Jodu Nath Deo 21 Indian Appeals 39 just cited was merely for declaration as to the boundary, to which Art.142 has no application. 10. The learned Judge observed thus in the judgment under appeal before us: "The plaintiff's title and possession of S. of No. 391/7, 8 & 9 having been admitted the plaintiff is to be presumed to have legal possession of those survey divisions in their entirety, and the onus is on the defendants to prove that they have been in adverse possession of a definite portion thereof for more than 12 years prior to the institution of the suit. In the language of the Privy Council in Mt. Allah Rakhi v. Shah Mohammad Abdul Rahim ( AIR 1934 PC 77 ) 'Where there is no doubt that the title to the lands is in the plaintiffs the onus is on the defendants to prove the adverse possession relied on.' The present is not a case of the plaintiff being out of possession of his property, but the defendants claiming to have encroached on his possession. The possession of the plaintiff of his land is admitted for its most part by the defendants themselves who claim adverse possession and prescriptive title over the disputed portion thereof. It must then be on the defendants to prove the same. I may at once say that the defendants have not made out their possession of the disputed property for 12 years preceding the suit. The courts below seem to assume that if the plaintiff has not proved his possession within twelve years prior to the suit, the defendant must be deemed to have perfected an adverse title thereto. To me, this appears to be strange reasoning; and even the proposition that the plaintiff complaining trespass of landed property must prove his possession within 12 years prior to the suit has its own limitations." 11. To me, this appears to be strange reasoning; and even the proposition that the plaintiff complaining trespass of landed property must prove his possession within 12 years prior to the suit has its own limitations." 11. In the nature of the allegations in the plaint we cannot find our way to agree that the present is not a case of "the plaintiff being out of possession of his property", but is of "the defendants claiming to have encroached on his possession." On the pleadings of the respondent it appears to be perfectly clear that he pleaded specifically possession and dispossession thus bringing the suit clearly within the scope of Art.142 of the Limitation Act. 12. The decision in Mt. Allah Rakhi v. Shah Mohammad Abdur Rahim AIR 1934 PC 77 also relied on in the judgment under appeal arose out of a suit for recovery of possession of certain lands from the defendants. The lands involved were wakf and the plaintiff as Sajjadanashin filed the suit as the manager of the wakf. The plaintiff's case was that the defendants who were appointed as mujawars were allowed to occupy the lands in return for their services in connection with the shrine. The defendants were dismissed from their employment as mujawars in 1898 but they continued to be in possession of the lands till the date of the suit in 1926. The defendants set up adverse possession. Their Lordships observed at page 81: "When this further contention was decided against them in 1903, they were allowed to remain in occupation of the lands by the Sajjadanashin. In considering the effect of this continued occupation of the lands it must be remembered that the mujawars, the predecessors of the appellant defendants, had been let into possession of the lands in consideration of their services as attendants at the shrine of Ala Uddin, and though they were dismissed from attendance at that shrine, they claimed to be entitled to render services and to collect fees, as mujawars, at the other two shrines in the village, and apparently they were permitted so to do. Their Lordships are of opinion that the facts relating to the period subsequent to the year 1903 are consistent with the occupation of the lands by the appellant defendants being by the leave and licence of the Sajjadanashin, which was induced through the mujawars continuing to perform the services at two of the shrines in the village. There is no doubt that the title to the lands was in the plaintiff, and the onus was on the appellant defendants to prove the adverse possession relied on. In the words of Lord Robertson, when delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna, 27 IA 136 at p. 140: 'The possession required must be adequate in continuity, publicity and in e xtent to show that it is possession adverse to the competitor'. Their Lordships for the reasons above mentioned are of opinion that the appellant defendants have not discharged that onus." 13. The above decision is no authority for the proposition that in suits in ejectment though in respect of an area near or close to the boundary the onus is on the defendant to establish title by adverse possession. Before closing this part of the discussion, it is necessary to refer to the decision of the Privy Council in Secretary of State for India in Council v. Chelikani Rama Rao 43 IA 192. Their Lordships observed at page 206: "Such secondly with reference to the 'subsisting title', it appears to their Lordships that nothing further is needed than the acknowledgement of the undisputed fact that these islands formed in the sea belonged to the Crown. That fact is fundamental: until adverse possession against the Crown is complete, that is to say, is for the period of sixty years, that fundamental fact remains, and that fact forms 'subsisting title'." 14. The above passage was relied on by the learned advocate for the respondent to show that since it is established that the disputed land forms part of survey Nos. 391/7 and 391/9 the title to which is admitted to be with him, the burden is on the appellants to prove that they have prescribed title by adverse possession for the statutory period. We do not find any force in this contention. 15. 391/7 and 391/9 the title to which is admitted to be with him, the burden is on the appellants to prove that they have prescribed title by adverse possession for the statutory period. We do not find any force in this contention. 15. In Secretary of State for India in Council v. Chelikani Rama Rao 43 IA 192 the plaintiff who was in possession alleged, that he had acquired title to the property by prescription and asked for a declaration of title on that ground. It was not a suit in which the plaintiff alleged possession and dispossession. The actual title to the property in the suit originally vested in the Government. It is obvious that in such a case the burden is on the plaintiff to establish acquisition of title by prescription to enable him to get the declaration asked for. The suit was one to which Art.142 had no application but Art.144 applied. This is clear from the following observations at page 205: "In their Lordships' opinion objectors to afforestation thus preferring claims are in law in the same position as persons bringing a suit in an ordinary Court of justice for a declaration of right. To such a situation in the one case, as in the other, their Lordships think that Art.144 of the Limitation Act XV of 1877 (Sched II) applies, the period of twelve years thereunder being, however, extended to a period of sixty years by Art.149. In an ordinary suit for a declaration it cannot be doubted that the onus of establishing possession for the requisite period would rest upon the plaintiff. In their Lordships' opinion the situation of a claimant under afforestation proceedings is the same upon this point". Their Lordships of the Lahore High Court in Behari Lal v. Narain Das AIR 1935 Lahore 475 made the following observation with reference to the decision in Secretary of State for India in Council v. Chelikani Rama Rao 43 IA 192. In their Lordships' opinion the situation of a claimant under afforestation proceedings is the same upon this point". Their Lordships of the Lahore High Court in Behari Lal v. Narain Das AIR 1935 Lahore 475 made the following observation with reference to the decision in Secretary of State for India in Council v. Chelikani Rama Rao 43 IA 192. "No doubt, there are words in that judgment which, if read apart from the context, might lead to the supposition that their Lordships of the Privy Council intended to Jay down that in all cases where one party had proved his title it was for the other party then to prove adverse possession, but I do not think that their Lordships of the Privy Council intended to lay down any such general proposition or to limit Art.142, Limitation Act, to suits based on what is called a possessory title alone. Had they intended to do so some reference, at any rate, would have been made to the numerous decisions of all the High Courts in India and of the Privy Council itself holding the contrary." 16. We are in respectful agreement with the above observations & hold that the decision in Secretary of State for India in Council v. Chelikani Rama Rao 43 IA 192 does not support the proposition contended for by the respondent's advocate. 17. The principle that proof of actual possession of a part of the property will be sufficient to prove the possession of the whole or the principle of constructive possession can be of no avail to the rightful owner when it is admitted by him that he has been dispossessed of a portion of the land within the meaning of Art.142 of the Limitation Act. Where there is no admission or evidence of dispossession of the true owner, the law presumes the true owner to be in possession. Where the necessary averments to attract Art.142 are already in the plaint it is for the plaintiff to prove that he has a subsisting title to the property on the date of the suit. In a case of this nature the defendant in admitted possession of the property is not obliged to lead evidence to prove that his possession has been hostile for the statutory period. What is meant by the term "dispossession" in Art.142 of the Limitation Act? In a case of this nature the defendant in admitted possession of the property is not obliged to lead evidence to prove that his possession has been hostile for the statutory period. What is meant by the term "dispossession" in Art.142 of the Limitation Act? Their Lordships of the Privy Council in Basanta Kumar Roy v. Secretary of State for India ILR 44 Calcutta 858 at 871, construed the term "dispossession" in the Limitation Act of 1877: "The Limitation Act of 1877 does not define the term "dispossession", but its meaning well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession: constructively it continues, until he is dispossessed; and, upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. 'There can be no discontinuance by absence of use and enjoyment, when the land is not capable of use and enjoyment' (per Cotton, L. J. in Leigh v. Jack, 1879 LR 5 Exch. D. 264, 274). It seems to follow that there can be no continuance of adverse possession, when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation. When sufficient time has elapsed to extinguish the old title and start a new one, the new owner's possession of course continues until there is fresh dispossession, and revives as it ceases." The respondent has no case that be has been in constructive or legal possession of the property. In this case on the contrary there is an unequivocal statement in the plaint that there was a termination of the de facto possession of the respondent. In Mohini Mohan Roy v. Promoda Nath Roy ILR 24 Calcutta 256 at 257 the Calcutta High Court observed: "The true rule deducible from the first mentioned case Radha Gobind Roy v. Inglis (7 CLR 364) and from certain other cases is that stated in the judgment of the majority of the Full Bench in Mohamed Ali Khan v. Khaja Abdul Gunny (ILR 9 Cal. 744) in which the learned Judges, after observing 'that as a general rule the plaintiff cannot, merely by proving possession at any period prior to twelve years before suit shift the onus to the defendant,' add, 'the true rule appears to us to be this: that where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time, and under such circumstances that that state naturally would, and probably did. continue till within twelve years before suit, it may properly be presumed that it did so continue, and that the plaintiff's possession continued also until the contrary is shown. This case appears to have been cited in the argument before the Privy Council in Raj Kumar Roy v. Gobind Chunder Roy (ILR 19 Cal. 660) and there is nothing in their Lordships' judgment to show that they disapprove the rule there laid down." The specific allegation in the plaint does not justify an inference that possession of the property is still with the respondent and what is alleged against the appellant is only a wrongful user of this property. We are therefore inclined to take the view, that the onus is upon the respondent to establish a subsisting title. The Munsiff and the learned Judge have held on the facts that the respondent has not discharged his burden by proving that he was in possession of the plaint item at any time within twelve years of the suit, though he failed to prove the trespass alleged. These findings have not been reversed by the learned Judge of this Court. We hold that the respondent has not established a subsisting title. The result will be that the suit has to fail. We therefore set aside the decree and allow the appeal restoring the decree of the Additional District Judge. The parties will bear their costs before us and in the second appeal before the learned single Judge.