Sreedharan Pillai v. Hymavatheeswari Amma — 1977 DIGILAW 92 (KER)

JUDGMENT P. Subramonian Poti, J. 1. A.S. No. 128 of 1976 is an appeal originally filed before the Sub Court, Kottarakkara, which was called to this Court for the purpose of being heard along with S. A. No, 1082 of 1972, assuming that the question for decision in the two appeals are the same. But after hearing counsel on both sides, we think that the matters for decision in these two appeals are different and the disposal of either of the appeals would have no bearing on the other. Therefore we do not propose to dispose of A. S. 128 of 1976, as in the normal course it is to be heard by the Sub Court, Kottarakkara against whose decision possibly there is a right of appeal to this Court provided the conditions for admission of such appeal under S. 100 of the Code of Civil Procedure, as amended, are satisfied. 2. In the second appeal plaintiffs are the appellants. There are 8 of them, the first appellant being the vendee of the rights of appellants 2 to 8 over suit properties. Certain properties belonging to one Balakrishna Pillai were claimed by the members of his tarwad as that obtained by them on bis death by reason of the fact that he died without wife or children. These properties were subject of a partition suit at the instance of some members of the tarwad, that suit being OS 24 of 1950 renumbered as O S. 140 of 1956 of the Kottarakkara Sub Court. The deceased Balakrishna Pillai, to whom all the properties so belonged, had executed a gift deed, Ext. D5, in favour of the first defendant in the present suit and the first defendant had, in turn, executed Ext. D6 settlement in favour of the 7th defendant in the suit and others. In the suit OS. 24 of 1950 the settlements were impeached and the plaintiffs therein succeeded in setting aside the gift deed in favour of the first defendant and the settlement deed executed by the first defendant. The plaintiffs in the suit OS. 24 of 1950 obtained 6/23 shares over those properties and towards such share properties were allotted to them. Plaintiffs 2 to 8 in the present suit were parties to the earlier suit OS. 24 of 1950. The plaintiffs in the suit OS. 24 of 1950 obtained 6/23 shares over those properties and towards such share properties were allotted to them. Plaintiffs 2 to 8 in the present suit were parties to the earlier suit OS. 24 of 1950. But they did not pay court fee for their share with the result that they did not get a decree for partition of their share in that suit. The properties left over after allotting 6/23 to the plaintiffs in OS. 24 of 1950 are the properties which are the subject matter of the present suit. Plaintiffs 2 to 8 and their vendee, the first plaintiff, claim their shares in the suit items that being 7/17 and in addition 2/5 of 1/17 that being the share out of deceased Kalliani Amma's share in these properties. The main contention which the plaintiffs in the present suit were faced with was that the donees under Ext. D5 gift deed and the subsequent donees under Ext. D6 settlement deed were holding the items gifted adversely to the real owners so much so that the present suit for partition filed more than 12 years after the commencement of adverse possession must be dismissed as barred. To counter this the case of the plaintiffs is that the earlier suit, O. S. 24 of 1950, was instituted well within time and before adverse possession had ripened into ownership and in that suit the settlement deeds having been set aside and the plaintiffs in that suit having been given a decree for recovery of possession of their shares the decision in that suit must enure to the benefit of other shares including plaintiffs 2 to 8. It is therefore said that adverse possession could commence only subsequent to that decision and if that be the case the suit instituted well within 12 years must be found to be not barred. The question then would be whether the decision in the ? earlier suit setting aside the settlement deeds Exts. D5 and D6 and enabling the plaintiffs in that suit to recover their share of the properties would arrest adverse possession as against plaintiffs 2 to 8 in this suit. If that be the case it must be that adverse possession must commence afresh in which event the suit being within 12 years there would be no question of adverse possession. 3. If that be the case it must be that adverse possession must commence afresh in which event the suit being within 12 years there would be no question of adverse possession. 3. The question whether mere passing of a decree declaring plaintiffs' title would interrupt adverse possession was subject matter of controversy in courts once upon a time. The Privy Council in the decision in Subbaiya v. M. D. Mustafa ( AIR 1923 PC 175 ) noticed the conflict of views and that was set at rest by the said decision In that case during the pendency of a suit for declaration of title to certain properties which was the subject of a trust some item was sold in execution of a decree and the auction purchaser came into possession pursuant thereto. A suit which was pending at that time was decreed declaring that the property was trust property. The auction purchaser was on record at the time the decree was made. But no steps were taken to recover possession or to dispute the auction purchaser's possession who continued in possession for more than 12 years. When the Trust instituted a suit to recover possession it was contended by the auction purchaser that bis possession was adverse and he had perfected title by such adverse possession. In view of the declaration in the earlier suit it was contended that such plea was unsustainable. The Privy Council found that the decree for declaration had not the effect of interrupting adverse possession and in this context the Privy Council said: "At the moment when it was passed, the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a Trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late". Whatever might have been the views held earlier by courts in India subsequent to this decision the courts have been uniformly holding that a declaration by a decree will not be sufficient to terminate adverse possession so as to cause the commencement of a fresh starting point for determining the question of limitation in a case where there is a plea of adverse possession. The only exception to this view was that expressed by the High Court of Travancore which, in a decision of five Judges reported in Narayana Pillai v. Lakshmi Pillai (1939 (29) TLJ 109), took a contrary view. A Full Bench of the Travancore-Cochin High Court bad occasion to consider the decision of the Travancore High Court in Narayana Pillai v. Lakshmi Pillai (1939 (29) TLJ 109) and review the decisions of various courts in India. That is in Ayyappan Pillai v. Sivarama Pillai ( 1956 KLT 570 ). The view of the Travancore High Court in 1939 (29) TLJ 109 did not appeal to the Full Bench and in fact this Court attempted to explain the decision as having been mainly based on the principle of stare decisis. But this court pointed out that even that may not be correct, for, the Travancore High Court itself was not consistently taking the same view. The principle accepted by the decision in 1956 KLT 570 adopting the view expressed by the Privy Council is consistent with the later decision of the Supreme Court in Lalji Jetha v. Kalidas ( AIR 1967 SC 978 ). The Supreme Court said in that case at paragraph 8 thus: "In Subbaiya Pandaram v. Mohamad Mustapha Maracayar, 50. Ind. App. 295 at p. 299 : AIR 1923 PC 175 at pp 176-177 a suit was brought by the appellant in 1913 against the respondents for possession of immovable property which had been dedicated to the endowment of a chattaram by deeds of trust executed in 1890 by the appellant's grandfather. In 1898 the first respondent purchased part of the property at a sale in execution of a decree against the appellant's father and the purchaser and the other respondents who claimed under him had since been in possession. In 1904, in a suit to which the first respondent had been joined as a party at his own request, a decree was passed declaring the validity of the said trust but no steps had been taken in consequence of that decree prior to the instant suit. In 1904, in a suit to which the first respondent had been joined as a party at his own request, a decree was passed declaring the validity of the said trust but no steps had been taken in consequence of that decree prior to the instant suit. The Privy Council observed that though the real argument in favour of the appellant was that in the presence of the purchaser it was declared that the said trust was valid and that the said property was trust property the contention that the said declaration operated as res judicata against the respondents and prevented them from asserting that the property was theirs was not tenable. "At the moment when it was passed the possession of the purchaser was adverse and the declaration that the property had been made subject to a trust disposition, and' therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted when it was too late." This decision was followed in Dagadabai v. Sakharam, AIR 1948 Bom. 149 where the High Court of Bombay held that if a decree for possession in plaintiff's favour does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it had interrupted possession; nor can it in law affect the nature of the possession, unless it does so in fact. On this basis the High Court held that the possession of the defendant must be deemed to have been adverse throughout and could not be said to have been interrupted by the mortgage decree. (See also Bhogilal v. Ratilal, AIR 1939 Bom. 261). The observation made by the High Court that possession of Kanji and Lalji was at no point of time adverse is clearly contrary to the decision of the Privy Council and the two decisions of the High Court of Bombay which were binding on them. (See also Bhogilal v. Ratilal, AIR 1939 Bom. 261). The observation made by the High Court that possession of Kanji and Lalji was at no point of time adverse is clearly contrary to the decision of the Privy Council and the two decisions of the High Court of Bombay which were binding on them. The fact that a decree for specific performance was passed in suit No. 263 of S. Y. 1987 would not affect the character of possession of Kanji and Lalji nor would the declaration therein made that the sale deed in their favour was not valid and binding on respondents 1 and 2 would have the effect of altering the character of their possession. Therefore, except for the rights and equities in favour of respondents 1 and 2 by virtue of the agreement of sale of August 1930, the sale in favour of Kanji and Lalji by the mortgagors was a valid sale and conveyed title in the shops in their favour. So far there would be no difficulty in the way of Mr. Sarjooprasad". 4. In view of these pronouncements it may not be necessary to go into this question any further. But we will not be doing justice to counsel unless we refer to the decisions cited by him as nevertheless supporting his case. 5. Reference is made by counsel to the decision of the Calcutta High Court in Achiman Bibi v. Abdur Rahim ( AIR 1958 Cal. 437 ). The Court found in that case that "when somebody is in wrongful possession and a suit is filed against him merely for a declaration that he has no right to be in possession, without prayer for consequential relief by way of recovery of possession, declaratory decree passed in the suit in no way disturbs wrongful possession and by efflux of time it may ripen into prescriptive title." But the court assumed that the position would be different when there is not only a declaratory decree but also a decree on a claim for possession. The court was actually considering a partition decree in that case. The court's attention was drawn to the decision of the Privy Council in Subbaiya v. Md. Mustafa ( AIR 1923 PC. 175 ). The court was actually considering a partition decree in that case. The court's attention was drawn to the decision of the Privy Council in Subbaiya v. Md. Mustafa ( AIR 1923 PC. 175 ). But that was distinguished by the court on the ground that the Privy Council was concerned with the effect of a decree in a suit for mere declaration. The court held that there was considerable difference between a suit for mere declaration and a suit for declaration coupled with a prayer for possession. The former, according to the court, would not disturb the wrongful occupation of a person but the consequence will be different if the suit for declaration is coupled with a claim for possession. With great respect we are unable to find any reasoning in the said decision in support of this. If a declaration as to title wilt not disturb the quality of possession of a person claiming to be in adverse possession how a further prayer for recovery of possession and grant of that prayer would make any difference in the quality of possession is not evident to us. Learned Counsel relied on Sultan Jehan Begum v. Gui Mohd., ( AIR 1973 MP 72 ). Though at first sight it may appear that the case supports the view canvassed by counsel, on a close scrutiny, it appears there is no scope for application of the decision to the facts here. That suit was instituted within 12 years but as it normally happens the trial of the case took time and in execution also there were proceedings which caused protraction of the delivery proceedings. A fresh suit was filed by the defendant claiming that he had prescribed title by holding property for more than 12 years adversely. There can be no serious contention that in order to get recovery of property it was sufficient to file a suit within 12 years and it was not necessary to get a decree also within 12 years. 6. One more decision is relied on by the counsel and that is of the High Court of Gujarat in Divali v. Koli Bala (AIR 1970 Gujarat 10). No doubt the learned single Judge observed in that case that when a decree in a suit for declaration together with prayer for possession is obtained that would interrupt the adverse character of the possession. No doubt the learned single Judge observed in that case that when a decree in a suit for declaration together with prayer for possession is obtained that would interrupt the adverse character of the possession. But we find no support to this view in any reasoning in that judgment. That would be contrary to the view expressed by the Privy Council approved by the Supreme Court in 1967 SC 978. 7. In these circumstances we do not think that the declaration as to the invalidity of Exts. D5 and D6 and consequent ownership of the suit property in the tarwad of which plaintiffs 2 to 8 are members will be of any consequence in the suit, for, if such declaration will not interrupt the adverse character of the possession no relief could be obtained in this suit by the plaintiffs. The result is that the concurrent decisions of the courts below that the suit must fail on the ground of adverse possession has only to be confirmed. No other question calls for decision in this case. The Second Appeal is dismissed. Parties are directed to suffer costs. A. S. No. 128 of 1976, for the reasons already indicated, will be returned to the Sub Court, Kottarakara for hearing of the appeal and disposal of the same on the merits. That shall be done expeditiously.