ACHUTHAN NAIR v. VASUDEVA MENON — 1970 DIGILAW 129 (KER)

Judgment :- 1. Madhavan Nair, J. said in Vaidhyanathaswamy v. Lekshmi Amma (1962 KLT. 577) referring to the scope of Art.142 of the Limitation Act, 1908 in a suit for recovery of possession: "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 land owners, the decision would depend on title unless the defendant proves his prescriptive title by adverse possession in regard to the encroached land". In the same decision the learned judge while noticing the proposition that the plaintiff in such a suit is bound to prove that he has title to the land in the suit and was in possession thereof at some time within 12 years prior to the institution of the suit expressed the view that in the discharge of the aforesaid onus the plaintiff can take advantage of the legal presumption in his favour. The learned judge was apparently referring to the presumption of possession arising from proof of title, and the presumption of continuity of an established state of things. 2. The same learned judge said in a later decision reported in Achuthan Unni v. Vally (1962 KLT. 1010): "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 Rakshi v. Shah Mahommed 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 bis 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 defendant themselves who claim adverse possession and prescriptive title over the disputed portion thereof. The present is not a case of the plaintiff being out of possession of bis 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 defendant themselves who claim adverse possession and prescriptive title over the disputed portion thereof. It must then be on the defendant 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 12 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." The learned judge had taken the same view in Damodara Panicker v. Ayyappan Kutty (1962 KLT. 637). 2. The decision of Madhavan Nair, J. in Achuthan Unni v. Vally (1962 KLT. 1010) went up in appeal and a Division Bench of this Court set aside the decision of the learned single judge in the decision reported in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86). Krishnamoorthy Iyer, J. speaking for the Bench said: "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". After referring to the judgment of the Privy Council in Maharaajh Koowur Baboo Nitrasur Singh v. Baboo Nund Loll Singh (8 MIA. After referring to the judgment of the Privy Council in Maharaajh Koowur Baboo Nitrasur Singh v. Baboo Nund Loll Singh (8 MIA. 199) the learned judges found: 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 12 years of the suit." The cases relied on by Madhavan Nair, J. in support of his view on this question were considered by the Bench and it concluded "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 land 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 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 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". 3. Madhavan Nair, J. noticed the decision of the Division Bench in Ouseph Varkey v. Ouseph Joseph (1966 KLT. 93), and applied that decision to the case before the learned Judge. His Lordship said: "Anyhow as the decision in 1962 KLT. 1010 stands now reversed by a Division Bench and the dictum in 1962 KLT. 637 is no more authoritative in the light of that reversal, the reliance placed on them by the Court below has to be undone." 4. But the same question again came up before Madhavan Nair, J. recently, in Sankaran v. Gouri Amma (1970 KLT. 279). 1010 stands now reversed by a Division Bench and the dictum in 1962 KLT. 637 is no more authoritative in the light of that reversal, the reliance placed on them by the Court below has to be undone." 4. But the same question again came up before Madhavan Nair, J. recently, in Sankaran v. Gouri Amma (1970 KLT. 279). My learned brother reiterated the view taken by him earlier in Vaidhyanathaswamy v. Lekshmi Amma (1962 KLT. 577). Madhavan Nair, J. said: "In my opinion, the above observation of the Privy Council (referring to Hafiz Mohammed Fateh Nasib v. Sir Swarup Chand Hukim Chand: (AIR. 1948 P. C. 76) applies well to a suit to settle a boundary dispute, where title to the respective lands (survey numbers) is admitted or proved. The presumption of possession following title must discharge the onus, if at all. on the plaintiff to prove his possession and therefore the decision has to rest "on title unless the defendant proves his prescriptive title by adverse possession in regard to the encroached area." (See 1962 KLT. 577 at 586) It is unfortunate that the above dictum happened to be reversed in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86). It is fortunate that Art.142 of the Limitation Act, 1908, which gave rise to decisions that ignored the presumption of possession following title, has been omitted in the new Limitation Act, 1963. However, in the light of the clear pronouncement of the Supreme Court on the operation of the presumption in Kashi Bai v. Sudha Rani Ghose AIR. 1958 SC. 434. cited above, I do not see any ground for reconsideration of my views expressed in Vaidhyanathaswami v. Lakshmi Amma (1962 KLT. 577)". 5. In effect the learned judge has reaffirmed the view held by him on this question in Vaidhyanathaswami v. Lekshmi Amma (1962 KLT. 577) and has not followed the decision of the Division Bench. 6. I had to refer to this here because, in the appeal before me, what is contended for by learned counsel for the appellant is that I must follow the decision of Madhavan Nair, J. in preference to the decision of the Division Bench reported in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86). 6. I had to refer to this here because, in the appeal before me, what is contended for by learned counsel for the appellant is that I must follow the decision of Madhavan Nair, J. in preference to the decision of the Division Bench reported in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86). The question that arises in this appeal is whether the plaintiff in a suit for recovery of possession of property lying between the admitted properties of the plaintiff and the defendant is entitled to a decree for recovery on proof of title. The trial court decided the case in favour of the plaintiff on the basis of the decision in Acthuthan Unni v. Vally (1962 KLT. 1010). The appellate court followed Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) as, by that time, the decision of the single judge had been reversed. The court below held that the burden of proving possession within 12 years of the suit was on the plaintiff, and in that the plaintiff had not succeeded. Therefore it dismissed the suit. It is not contended that on the evidence in this case plaintiff will be able to show possession within 12 years of the suit unless the plaintiff is allowed to call to his aid the presumption that possession follows title and therefore the burden of proving possession for more than 12 years is cast on the defendant in the suit. What learned counsel Sri, T. S. Venkiteswara Iyer would contend for is that the correct view is that expressed by the learned Judge Madhavan Nair, J. and since that is a later decision based on a decision of the Supreme Court that is the decision to be followed by me in this second appeal. 7. I cannot find my way to agree with the contention of the learned counsel for the appellant. The view taken by the Division Bench on the question before me has not been overruled by any decision of this court. I do not think any later Single Bench decision is to be followed by me, in the circumstances. It is true that if there is any decision of the Supreme Court rendered subsequent to the decision of the Division Bench it would be proper on my part to base the decision on the view expressed by the Supreme Court in such a matter. It is true that if there is any decision of the Supreme Court rendered subsequent to the decision of the Division Bench it would be proper on my part to base the decision on the view expressed by the Supreme Court in such a matter. But that is not the case here. The learned Single Judge relies on Kashi Bai v. Sudhe Rani Ghose (AIR. 1958 S. C. 434) and the earlier decision in Rafiz Mohammed Fateh Nasib v. Sir Swarup Chand Hukum Chand (AIR. 1948 P. C. 76) in support of the view taken by him. These being decisions rendered long before Achuthan Unni v. Vally (1962 KLT. 1010) and Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) I do not think I should consider the authority of the Division Bench decision being shaken in any manner. I feel I am bound by the decision in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) and therefore follow the same. 8. I think, before leaving this matter, it is necessary for me to express my views on the matters referred to in the judgment of my learned brother Madhavan Nair, J. Apart from the fact that the decision of the Division Bench continues to be binding authority, I must say that I am not persuaded to agree with the views expressed by my learned brother Madhavan Nair, J. in Sankaran v. Gouri Amma 1970 KLT. 279. It is true that the existence of a legal presumption that possession goes along with title cannot be in doubt. It is also true that when there is dispute as to possession of property the presumption that possession follows title will necessarily apply. It is also true that in the decision of the Supreme Court in Kashi Bai v. Sudhe Rani Ghose (AIR. 1958 S. C. 434) this presumption was applied to the facts of the case to find against the plea of the defendant therein that her possession had matured in ownership by adverse possession. The question considered in that case was one of adverse possession and the question of presumption arising out of title was invoked in considering that question. 1958 S. C. 434) this presumption was applied to the facts of the case to find against the plea of the defendant therein that her possession had matured in ownership by adverse possession. The question considered in that case was one of adverse possession and the question of presumption arising out of title was invoked in considering that question. The appellant before the Supreme Court claimed to have obtained title to the subject-matter of the suit by adverse possession and such a plea of adverse possession was based on the conduct of mining operations in the properties which was the subject of dispute. Such operations were carried on intermittently for more than 12 years. The Supreme Court took the view that continuous possession of the mining area for a period of 12 years would have to be established to succeed in the plea of adverse possession. What had been proved by the appellant was that two inclines were opened and worked in 1917 or 1918 by the predecessor in interest of the appellant, though no mining operations were carried on till 1923, when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or was not quite clear but there were no operations from 1939 to 1944, when they were recommenced by the appellant. Taking note of these facts the Supreme Court held: "During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner." No question of applying the presumption as to possession arising from title in a suit to which Art.142 of Limitation Act 1908 applied arose in that case. I am mentioning this because, according to me, if that be the case considerations might be different, as indicated in the decision of the Privy Council in Mohima Phunder Mozoomdar v. Mohesh Phunder Weoghi (ILR.16 Cal. 473). The decision in Mt. Allah Rakhi v. Shah Mohammed Abdur Rahim (AIR. 1934 PC. 77) referred to by Madhavan Nair, J. has been considered by the Division Bench in Ponnamma Vally v. Achuthan Unni (1966 KLT. 473). The decision in Mt. Allah Rakhi v. Shah Mohammed Abdur Rahim (AIR. 1934 PC. 77) referred to by Madhavan Nair, J. has been considered by the Division Bench in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) and the Division Bench has indicated its view that the above decision was 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. With great respect, I agree with the Division Bench. It is not as if the Division Bench has not noticed the decision in AIR. 1934 PC. 77 which the learned Single Judge has referred to in his judgment. 9. My learned brother seems to have taken the view that there is nothing in S.3 of the Limitation Act 1908 or Art.142 in Schedule I of that Act to indicate that in the discharge of the onus cast on a plaintiff in a suit in ejectment to prove possession within 12 years of the date of suit the plaintiff is not to rely on the legal presumption that arises from proof of title to the land, and the learned judge has observed that this aspect appears to have been overlooked by many a learned judge in decisions. According to my learned brother, it would appear that in a suit to which Art.142 of the Limitation Act of 1908 is attracted the plaintiff may be entitled to succeed even if he adduces no evidence of his possession within 12 years of suit as he could rely on the presumption of possession arising from title. It appears to me that this will run counter to the view taken uniformly by all the courts of the land for all these years. That apart, with great respect to my learned brother, I cannot agree with the view taken by him on this question. The presumption that possession follows title will be available when the plaintiff claims to be in possession. When the plaintiff himself admits that he has been dispossessed before the suit the question would be as to when the plaintiff was so dispossessed. The presumption following from title cannot operate so as to hold that the plaintiff, though not in possession on the date of suit, must have been dispossessed some time within 12 years of the suit. When the plaintiff himself admits that he has been dispossessed before the suit the question would be as to when the plaintiff was so dispossessed. The presumption following from title cannot operate so as to hold that the plaintiff, though not in possession on the date of suit, must have been dispossessed some time within 12 years of the suit. That is why the rule that possession follows title cannot be applied to such a case. 10. As early as in 1888 the question which has been considered by me here came up before the Privy Council. The question in that case was whether applying Art.142 of the Limitation Act of 1877 to that case the plaintiffs were bound to show they were in possession within 12 years of suit. Just as Art.142 of the Limitation Act. of 1908 required a suit to be filed within 12 years of dispossession, Art 142 of Limitation Act of 1877 also provided similarly. The learned judge against whose judgment an appeal was taken to the Board had said: "When I showed above that the plaintiffs are the rightful owners of the disputed land, it is for the ryot defendants to show that they are entitled to retain possession of these lands." Their Lordships of the Board were not prepared to accept this. The Board said: "That, as a proposition of law, is one which hardly meets with the approval of their Lordships. The Board said: "That, as a proposition of law, is one which hardly meets with the approval of their Lordships. This is in reality what in England would be called an action for ejectment, and in all actions for ejectment where the defendants are admittedly in possession, and a fortiori where, as in this particular case, they had been in possession for a great number of years, and under a claim of title, it lies upon the plaintiff to prove his own title The plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that, in this case, the onus is thrown upon the plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at some time within 12 years before the commencement of the suit, namely, for the two or three years prior to the year 1875, or 1874, and that it does not lie upon the defendants to show that in fact the plaintiffs were so dispossessed." I was referring to this decision because it is not as if the rule of presumption arising from title has not been noticed in laying down the rule as to burden of proof under Art.142 of the Limitation Act. I need not refer to the various decisions on this question, but I think it is profitable to refer to the decision of the Full Bench of the Madras High Court reported in Official Receiver v. Govindaraju (AIR. 1940 Mad. 798). After referring to the decisions of the Privy Council on this question Leach C. J. said: In view of these decisions of the Privy Council, it cannot in my judgment, be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows, in addition to title, that he has been in possession of the property within 12 years of the suit. The Privy Council has declared that to be the effect of Art.142 and that suits for ejectment come within that Article. The plaintiff is not entitled to succeed unless he shows, in addition to title, that he has been in possession of the property within 12 years of the suit. The Privy Council has declared that to be the effect of Art.142 and that suits for ejectment come within that Article. It may be a hardship that a person who proves a title to property should lose it to a trespasser unless he can also show that he has been in possession within 12 years of suit, but that is what the Limitation Act says and the Court must administer the law. And drafting his plaint in a manner which disguises the real nature of the suit will not help a plaintiff." 11. Following the decision of the Division Bench in Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) I therefore hold that if the suit be on the allegation that plaintiff, while in possession, has been dispossessed and seeks recovery of property, plaintiff has to prove possession within 12 years of suit. In seeking to prove this he cannot remain content with calling to aid the presumption arising from his title. In fact there is no such presumption that the dispossession was on a particular date falling within 12 years of the date of suit. 12. In the view I have taken the decision of the court below does not call for interference. The court below applied Ponnamma Vally v. Achuthan Unni (1966 KLT. 86) to the case and rightly found that it was for the plaintiff to prove his subsisting title and plaintiff has failed to prove the same. The second appeal is therefore dismissed with costs. S.A.N. Dismissed.