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Maidi Bhikashmiah v. Venugopalrao
Structured Summary of the Opinion
Factual and Procedural Background
The two appellants (plaintiffs) sued to recover possession of lands bearing Survey Numbers 1035 and 1063 in Dharmapur village. Their suit was dismissed by both lower Courts. The suit named three defendants, but the second and third were described as mere servants of the first defendant, who was the main contesting party.
Originally the plaint sought declaration and injunction; subsequently, because possession of the properties had been given to the 1st defendant under an order of the Revenue Minister dated 8-11-1952, the plaintiffs amended to seek delivery of possession.
Material facts proved or admitted in the record include:
- In 1330 Fasli (1920–1921) the mother of the 1st appellant sold the lands to Viswanatham when the 1st appellant was a minor. A document mentioning Rs. 95 as due to the purchaser exists (certified copy: Ex. 9; original said to be lost).
- On Khurdad 11, 1346 Fasli (15-4-1937) the 1st appellant petitioned the Collector for possession, alleging that Viswanatham, originally a tenant, had illegally taken possession and ceased payments. The Tahsildar of Miriyalguda on Dai 21, 1347 Fasli (25-11-1937) found for the petitioner and directed possession to be given (Ex. 2).
- The Collector took a contrary view, holding that Section 74 of the Hyderabad Revenue Act did not justify restoring possession because Viswanatham's possession had been for a long time. Proceedings under Section 74 could be ordered only where wrongful possession was of one year's duration.
- The 1st appellant filed revision before the Subedar, who on Isfandar 14, 1350 Fasli (16-1-1941) allowed it and upheld the Tahsildar's order (Ex. 1). The Revenue Department later held the Collector's view to be correct (final order Ex. A-21 dated Farwardi 15, 1351 Fasli / 16-2-1942).
- During the revenue dispute, Viswanatham alienated the lands: he sold them to Cheruku Subbiah on Shehrewar 24, 1344 Fasli (31-7-1935) (Ex. 6) and later conveyed the lands to the 1st defendant on Azur 8, 1350 Fasli (13-10-1940) for Rs. 1,000 (Ex. A-20).
- A separate litigation under Section 11 of the Hyderabad Agricultural Land Alienation Act began in 1352 Fasli (1942–1943) with an application by the 1st appellant alleging mortgaging and reconveyance by Viswanatham and forceful possession by the 1st defendant. The Collector on Thir 27, 1356 Fasli (1-6-1947) directed that the applicant's (1st appellant's) possession be maintained (Ex. 8); that order was later reversed by higher revenue authorities, giving possession to the respondent.
Legal Issues Presented
- Whether the plaintiffs' suit for possession is barred by the 12 years limitation, i.e., whether Viswanatham had, by 12 years adverse possession, acquired an indefeasible right to the properties.
- Whether Viswanatham, having previously alienated the properties, could validly confer title on the 1st defendant such that the 1st defendant could resist the appellants' claim for possession.
- Whether the absence of an issue on limitation in the trial Court prejudiced the appellants and therefore invalidated the dismissal of their appeal.
- Whether decrees, orders or proceedings in the revenue or civil courts (including declaratory decrees) interrupted the running of adverse possession so as to permit deduction of time under Section 14 of the Limitation Act.
Arguments of the Parties
Appellant's Arguments
- The suit is not barred by 12 years' limitation because Viswanatham and any purchaser from him had not been in adverse possession for the necessary period.
- Viswanatham, having already sold the property to another, could not confer valid title on the 1st defendant; thus the 1st defendant cannot resist the appellants' claim for possession.
- No issue on limitation was framed in the trial Court, so the appellants were not afforded an opportunity to contest the lower appellate Court's reliance on a 12-year limit ground.
- Specific to the character of possession, appellants contended Viswanatham admitted he cultivated as a lessee (possession by permission) so adverse possession could not commence; appellants further argued that the periods during which Tahsildar's and Subedar's orders were operative should be deducted under Section 14 of the Limitation Act.
- Appellants relied on authorities (e.g., Achhiman Bibi v. Abdur Rahim) to argue that declaratory or possession decrees can arrest the running of limitation.
Respondent's / Defence Position
- Viswanatham had been in possession of the properties for more than twelve years and had asserted ownership; accordingly he had acquired title by adverse possession.
- Viswanatham had sold the lands through registered deeds to subsequent purchasers (including to the 1st defendant), and the 1st defendant's possession was founded on that alienation.
- The revenue and other proceedings did not interrupt or defeat the running of adverse possession because the corpus of the property was not taken from the person in possession and the possession remained undisturbed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Puthia Valappil Avissa v. Lakshmana Prabhu, 1911-1 Mad WN 207 | Held that a decree of possession by civil Courts does not, by itself, stop the running of adverse possession when the property remains in the possession of the defendant. | The court relied on this authority to support the proposition that decree or judgment without actual dispossession/execution does not interrupt adverse possession. |
| Singaravelu Mudaliar v. Chokkalinga Mudaliar, AIR 1923 Mad 88 | Judgment declaring one party has no title does not cause his possession to cease to be adverse so long as possession remains undisturbed. | The court used this to reinforce that judicial declarations alone, without actual change in possession, do not interrupt the running of adverse possession. |
| Achhiman Bibi v. Abdur Rahim, AIR 1958 Cal 437 | Relied on by appellants for the proposition that a declaratory decree coupled with a decree for possession arrests the running of limitation. | The court distinguished and disagreed with the applicability of this authority to the present facts, explaining that a decree without actual dispossession or execution does not interrupt adverse possession. |
| Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16 | Holds that benefits under Section 14 of the Limitation Act apply only where the relief sought in the two proceedings is the same. | The court applied this rule to reject the appellants' claim for deductions under Section 14, because the proceedings before the revenue authorities and the present suit did not seek the same relief. |
Court's Reasoning and Analysis
The court identified the principal issue as whether Viswanatham had acquired an indefeasible title by adverse possession for twelve years. The analysis proceeded in sequential steps, applying documentary facts and legal principles stated in authorities cited in the judgment:
- Existence of an early assertion of title: the court noted that Viswanatham, as early as Ardibehist 13, 1330 Fasli (18-3-1927), applied for mutation of pattas in his name claiming purchase (certified copy: Ex. 4). The court treated this as a clear assertion of an adverse title that pre-dated later disputes.
- Character of possession and the effect of revenue and judicial proceedings: appellants argued (a) that Viswanatham had admitted being a lessee (possession by permission), and (b) that Tahsildar's and Subedar's orders created a suspension of the appellants' ability to recover possession, allowing deduction of those periods under Section 14 of the Limitation Act. The court rejected these contentions.
- On interruption by decrees: relying on precedents (Puthia Valappil Avissa and Singaravelu Mudaliar), the court held that merely obtaining a decree or declaration does not interrupt adverse possession unless the corpus was taken from the person in possession or actual dispossession occurred. A declaratory decree or an unexecuted decree for possession does not, by itself, change the animus of the person in possession or stop the running of limitation.
- On Section 14 of the Limitation Act: the court concluded Section 14 did not assist the appellants because the reliefs in the revenue proceedings were not the same as the relief now sought in the civil suit; it relied on Yeshwant Deorao v. Walchand Ramchand to require identity of relief for Section 14 to apply.
- On the absence of an issue on limitation at trial: the court observed that the appellants themselves had filed documents relating to earlier revenue proceedings (under Section 74 of the Hyderabad Revenue Act) and thus were aware of the adverse title claimed. Consequently, the omission of a specific issue on limitation caused no prejudice to the appellants.
- Cumulative conclusion: because Viswanatham had asserted title early and maintained possession for more than twelve years, and because intervening orders/decrees did not effectuate actual dispossession or interrupt the adverse possession, the court concluded that Viswanatham had become the absolute owner by adverse possession. The other grounds (including that Viswanatham could not convey because he had earlier sold) failed in the context of the appellants having lost their rights by lapse of twelve years; the court noted that the court's role in the ejectment suit was to adjudicate the appellants' claim, not to relitigate the defendants' inter se rights.
Holding and Implications
APPEAL DISMISSED.
Direct consequences and immediate effects:
- The appeal is dismissed with costs throughout (the judgment states "I therefore dismiss the appeal with cost throughout. Leave granted.").
- The lower Courts' dismissal of the plaintiffs' suit to recover possession of S. Nos. 1035 and 1063 is upheld.
Broader implications:
The opinion applies established principles that a declaratory decree or an unexecuted decree for possession does not interrupt adverse possession so long as the physical possession remains undisturbed; it also applies the requirement (from Yeshwant Deorao) that Section 14 of the Limitation Act applies only where the reliefs in the two proceedings are the same. The opinion does not state that it establishes any new legal precedent beyond applying these principles to the facts of the case.
1. The two appellants are the plaintiffs, whose suit to recover possession of lands bearing S. Nos. 1035 and 1063 in Dharmapur village has been dismissed by both the Courts. The claim was filed against three persons; but the second and third defendants were mere servants of the first defendant, who is the real contestant in the case. The plaint was originally one for declaration and for injunction; but the possession of the properties was given to the 1st defendant under an order of the Revenue Minister which is dated 8-11-1952 and thereafter the plaintiffs have added the relief for the properties being delivered to them. In order to appreciate the several arguments urged in the appeal, it is necessary to state first certain admitted and proved facts in the case.
2. The mother of the 1st appellant had sold the lands to one Viswanatham in 1330 Fasli (1920-1921); when the 1st appellant was a minor. She had then executed a document transferring the lands in consideration of Rs. 95 which amount was mentioned as being due to the purchaser. Ex. 9 is the certified copy of the sale deed whose original is alleged to have been lost. On Khurdad 11, 1346 Fasli (April 15, 1937) the 1st appellant filed a petition before the Collector asking for the possession of the lands on the ground that Viswanatham was originally cultivating them as tenant, after the death of the pattadar he illegally got the possession and had not been since paying any money. The Tahsildar of Miriyalguda to whom the petition was sent for necessary enquiries on Dai 21, 1347 Fasli (25-11-1937) found in favour of the petitioner and directed possession of the two lands to be given to the applicant. The certified copy of the Tahsildar's order is Ex. 2. The Collector however took a different view and came to the conclusion that as Viswanaham's possession was for a long time, Section 74 of the Hyderabad Revenue Act did not justify any order to restore possession.
3. In this connection it may be mentioned that the proceedings to restore under the aforesaid Section could be ordered only where wrongful possession be of one year's duration. The 1st appellant filed a revision petition before the Subedar, who on Isfandar 14, 1350 Fasli (16-1-1941) allowed it and upheld the order by the Tahsildar. The judgment is Ex. 1. The dispute was continued in the Revenue Department, where the view taken by the Collector was found correct. A copy of the final order is Ex. A-21 and is dated Farwardi 15, 1351 Fasli (16-2-1942).
4. It appears that while the aforesaid dispute was being continued in the Revenue Department Viswanatham had alienated the lands to two persons. On Shehrewar 24, 1344 Fasli (31-7-1935) he had sold them to one Cheruku Subbiah and the certified copy of this sale deed is Ex. 6. Again he conveyed the lands to the 1st defendant this case on Azur 8, 1350 Fasli (13-10-1940) for Rs. 1,000/-. The relevant document is Ex. A-20.
5. Before dealing with the arguments in this appeal I would mention some details of another litigation between the parties. This appears to have been started 1352 Fasli (1942-1943) and was under Section 11 of the newly enacted Hyderabad Agricultural Land Alienation Act. It began with an application by the 1st appellant alleging that the lands had been mortgaged with Viswanatham, who had reconveyed the properties on getting payment of Rs. 200; but the 1st defendant has got their possession by force.
6. The defence taken was that Viswanatham was in possession of the properties for more than twelve years and he has sold them through a registered deed in favour of the contesting party. The Collector on Thir 27, 1356 Fasli (1-6-1947) had allowed the appeal and directed applicant's possession to be maintained. A copy of the Collector's judgment is Ex. 8. The aforesaid order was reversed by the higher revenue authorities and possession was directed to be given to the respondent, to which order a reference had been already made earlier in this judgment.
7. Mr. Deshmukh on behalf of the appellants has urged the following three grounds for allowing the appeal:
1. The suit for possession is not barred by 12 years limitation, because Viswanatham and the purchaser from him, have not been in possession for the necessary period of 12 years;
2. Viswanatham having sold the property to another could not confer valid title on the 1st defendant, who could not resist the claim by the appellants for possession of the properties; and
3. there was no issue in the Courts below concerning Viswanatham having acquired the properties by 12 years adverse possession and therefore the appellants have not had any opportunity to contest the ground on which the lower appellate Court has dismissed their appeal.
8. By far the important issue in the case is whether Viswanatham had by 12 years adverse possession acquired indefeasible right to the properties. The learned counsel has tried to show his not having done so, because of the several reasons. The first is that Viswanatham has admitted having cultivated the lands as lessee and the appellants' advocate has urged that there was his clear evidence of his having got into possession by permission. He argues that no adverse possession would begin unless some adverse title is subsequently put forward and that would be in proceedings which were started in 1346 Fasli (1936-1937); but then the appellants had admittedly got possession of the properties in 1357 Fasli (1947-1948) which is within 12 years of the proceeding.
9. On these facts the argument is that Viswanatham's title has not matured by full twelve years possession. I do not think the argument can be accepted, for it appears from the record that Viswanatham has put forward his adverse tide much earlier. He had as far back as Ardibehist 13, 1330 Fasli (18-3-1927) asked for the mutation of pattas of the lands in his name, wherein he had claimed to have purchased the properties. This is borne out by the certified copy of his application which is Ex. 4 in the case. There is therefore a clear assertion of title by Viswanatham in 1336 Fasli (1926-1927) and if the several decisions of the revenue Courts be not taken as constituting interruption of his adverse possession, by 1350 Fasli (1940-1941) Viswanatham's possession would confer on him full title.
10. The counsel of the appellants has thereafter argued that because of the Tahsildar's and the Subedar's judgments the appellants' right to recover possession of the properties was in suspended animation and that when counting 12 years the periods during which these orders were operative, should be deducted under Section 14 of the Limitation Act. There are authorities binding on me that mere decree of possession by civil Courts do not interrupt running of adverse possession. In Puthia Valappil Avissa v. Lakshmana Prabhu, 1911-1 Mad WN 207, it has been held that a decree in favour of a party with regard to the property does not by itself stop the running of limitation when the property continues to be in the possession of the defendant.
11. Again it has been held in Singaravelu Mudaliar…(First Defendant), v. Chokkalinga Mudaliar…(Plaintiff), .*, AIR 1923 Mad 88, that the judgment of a Court declaring that one of the parties has not title to the properties in suit cannot have the effect of causing his possession to cease to be adverse to the opposite party from the moment of its pronouncement so long as possession remains undisturbed. The learned counsel of the appellants tries to distinguish these on the ground that the position is such where there is only a declaratory decree.
12. He urges that where a suit is for the declaration coupled with a claim to recover possession and it is decreed in the presence of the person in wrongful occupation, the decree arrests the running of time against the true owner. In support of this argument, he relied on Achhiman Bibi v. Abdur Rahim, AIR 1958 Cal 437. With respect to the learned Judges I beg to differ. The reason for holding a declaratory decree as not interrupting adverse possession is that to constitute such an interruption the corpus of the property should be taken from the person in possession. The position would not be different where the decree for possession remains un-executed.
13. In other words, if passing a declaratory decree does not constitute a change of animus of the person in possession, giving a decree for possession should not be interpreted otherwise. I would therefore not modify the broad rule that a decree without actual interference in the possession does not interrupt the possession. It follows that unless possession be found to have been delivered to the appellants in pursuance of the orders relied by the appellants, the adverse possession against them would continue. There is no evidence of such possession and the result is that Viswanatham had become an absolute owner of the properties by remaining in possession for more than twelve years.
14. It was then urged on behalf of the appellants that they are entitled to certain deductions under Section 14 of the Limitation Act. I am afraid S. 14 would not be helpful because the proceedings in this case are not for obtaining the same relief that the appellants had asked the revenue authorities. It cannot be argued after Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16 that because the consequence of the two proceedings be the same, the benefit of the Section can be claimed. That decision insists on the relief being the same and I am afraid that cannot be held in this case. Therefore this argument also fails.
15. It was then urged that no issue on limitation has been framed by the trial Court, but then the documents concerning the earlier revenue proceedings? under Section 74 of the Hyderabad Revenue Act were filed by the appellants and this means that they were fully aware of the adverse title which the 1st defendant was claiming in the case.
16. It follows that the absence-of the issue has caused no prejudice to the appellants.
17. The 1st ground for vacating the decree of the two lower Courts is that Viswanatham having earlier alienated the properties had no title to confer on the respondent and therefore the latter could not resist the claim of appellants. I am afraid the argument overlooks the fact of the appellants being the plaintiffs in an ejectment suit. They have lost their rights by lapse of twelve years and in their claim we are not to determine the rights of the defendants. Consequently the last ground for allowing the appeal fails.
18. I therefore dismiss the appeal with cost throughout. Leave granted.
R.G.D
19. Appeal dismissed.
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