Ponnu v. Achuthan & Another

Velu Pillai, J.:— This second appeal arises out of a suit for declaration of title and recovery of possession of the suit property. It originally belonged to one Mathur Ramaswami Iyer and was held on lease by the 3rd defendant; subsequently it was assigned to one Venkatachalam Iyer to whom the 3rd defendant attorned, by executing a pattomchit on the 4th November, 1918, of which Ext. A1 is the copy. It was alleged by the plaintiff, that on the 1st October, 1949, the 3rd defendant leased the property orally to her deceased sister Ammu, who was the mother of defendants 1 and 2. The 3rd defendant sued her for eviction in O.S 585 of 1953 impleading defendants 1 and 2 in the course of the suit as her legal representatives upon her death. Though that suit was decreed by the first court, the lease was found against and the suit was dismissed in appeal. The rights of the 3rd defendant became vested in the plaintiff by assignment Ext. A2 dated the 11th July, 1955, and he has instituted the present suit. Defendants 1 and 2 contended, that the property was held on lease originally by Pazhanimalai, and upon his death it devolved on his daughters the 3rd defendant and Ammu, that Ext. A1 was executed by the 3rd defendant in a representative capacity on behalf of Ammu also, that the plaintiff derived no interest under Ext. A2, that after the death of Ammu defendants 1 and 2 alone are entitled to one-half of the property, and that the suit is in any event barred by limitation. The court of first instance dismissed the suit, but on appeal the District Judge decided in favour of the plaintiff and gave him a decree for recovery of possession. The second appeal is by the first defendant.

2. The first question for determination is whether the 3rd defendant was solely entitled to the leasehold or not. The only document of lease in evidence is Ext. A1 which recited, that anterior possession was with the 3rd defendant under Mathur Ramaswami Iyer, and provided, that on demand by Venkitachalam Iyer she would surrender possession on receipt by her of the value of improvements and execute a deed of release at her expense and that she and her improvements were liable for the due payment of pattom and interest thereon.

3. There is no indication whatever in Ext. A1, that the 3rd defendant took the lease for any one except herself. As against this, there is the case of defendants 1 and 2 that Pazhanimalai was the original lessee of the property. Even the first court which dismissed the suit was not prepared to accept this plea. There is a fundamental discrepancy or even inconsistency between pleading and proof in this part of the case. In the written statement, Pazhanimalai's lease was said to have been from one Chellappa Iyer whose identity itself was not attempted to be proved, and at the trial these defendants led evidence to prove that the lease was from the variyam of D.W 2. The only other item of evidence which was relied on, was the statement in Ext. B1, a prior deposition of the 3rd defendant who died after this second appeal was filed. There was a controversy in the lower courts, that Ext. B1 could not be admitted in evidence without the 3rd defendant being confronted with it. It was argued, that the relevant statement in Ext. B1, constituting as it does an admission of the 3rd defendant, is admissible in evidence even without confronting her with it. It is unnecessary to resolve this controversy, although it may be observed, that the preponderance of judicial opinion seems to favour the admissibility of such an admission, even granting that it is admissible, the statement relied on is not conclusive as to its import and is in any event insufficient to establish the contention of the defendants. The admission was, that at the time of the marriage of the 3rd defendant, there was a pattappura or thatched shed in the property which was built by Pazhanimalai; that was all. From this it was sought to be inferred, that the original lease, by whomsoever granted, whether by Chellappa Iyer or by the variyam of D.W 2, was to Pazhanimalai and that therefore the lease evidenced by Ext. A1 was to the 3rd defendant as the heir of her father and on behalf of Anxmu as well. There is no evidence as to Pazhanimalai's possession or as to the time of his death; even if a lease in his favour is to be read into the statement, it does not follow that Ext. A1 was executed by the 3rd defendant in a representative capacity, or that it was not a transaction independent of the old lease, if any. The recital that even the prior possession was with the 3rd defendant and under Mathur Ramaswamy Iyer is significant. Though the two daughters of Pazhanimalai may be deemed to be his heirs or the sole heirs under Hindu law by which he was said to be governed, and though daughters who inherit to their father take as joint tenants, no rule of Hindu Law was relied on for holding that the senior among them has a representative capacity, as the manager of a joint Hindu family. The slender circumstance that a pattappura was put up by Pazhanimalai once upon a time, is not sufficient to rebut the natural inference arising from Ext. A1, that the lease was in favour of the 3rd defendant individually, at first by Mathur Ramaswami Iyer and subsequently by Venkitachalam Iyer. P.W 1 and P.W 2 have given evidence, that the lease was taken by the 3rd defendant individually and the evidence of the first defendant as D.W 1 was rightly discarded by the District Judge, as he was a child of tender age at the time of Ext. A1. On the evidence on record, I agree with the District Judge in holding that the lease was to the 3rd defendant individually. There is no evidence whatever of a lease by her to Ammu. But the evidence of P.W 2 is that Ammu has been living in the property after the death of her husband. According to the first defendant, after the death of Ammu's husband which took place long ago, the 3rd defendant asked Ammu to live with her in the property. On this evidence there is no material to hold that the 3rd defendant gave a lease to Ammu.

4. The question then arises, whether on the strength of the plaintiff's title to the property a decree can be granted for recovery of possession from defendants 1 and 2, who are now admittedly in possession of the property. At the time the suit was instituted, the 3rd defendant had taken delivery of possession under the decree of the primary court in O.S 584 of 1953, and the plaintiff came into possession under the assignment Ext. A2. The prayer in the plaint was for declaration of title. In the written statement filed in the year 1956, delivery of possession to the 3rd defendant and possession of the plaintiff were admitted. Thereafter the appellate decree which went against the 3rd defendant, was followed by re-delivery of possession to defendants 1 and 2. The plaint was then amended as for recovery of possession. On these premises it was contended for the plaintiff, that the dispossession of the plaintiff, for such as it was by re-delivery to defendants 1 and 2, furnished a starting point for limitation under Article 142 of the Indian Limitation Act. It appears to be well settled, that when a person who has title to the property and has been out of possession, forcibly regains possession, such possession is rightful possession and subsequent loss of his possession amounts to dispossession under Article 142. The principle deducible from decided cases is summarised thus by Rustomji in the Law of Limitation and Adverse Possession, 6th edition, at page 817:

“There can be no constructive possession of a wrongdoer during the time that he is not actually in possession and the possession of a true owner, no matter how that possession is obtained, must be considered as rightful possession in law and that the period during which the true owner is in possession will inure to his benefit and not to that of the trespasser. In other words, the period of limitation under Article 142 will run against the plaintiff (being the rightful owner) from the date of his subsequent dispossession, and not from the time when he was first dispossessed.”

5. Generally speaking they are cases in which the person having title and having forcibly regained possession, lost possession in a suit under Section 9 of the Specific Relief Act, 1877. These are Protan Chandra v. Durga Charan (1905, 9 C.W.N 1061), Jonab Sheikh v. Suriya Kanta Achariya Chowdhry (1906, 33 Calcutta 821), Mir Waziruddin v. Lala Deoki Nandan (1907, 6 C.L.J 452) Mamtazuddin v. Barkatulla (1905, 2 C.L.J 1), Girish Chandra Pal v. Baikuntha Nath Singha (A.I.R 1925 Calcutta 270). The case in Girish Chandra Pal v. Baikuntha Nath Singha (A.I.R 1925 Calcutta 270) bears close analogy because the plaintiff who had title, having obtained possession under the first decree passed under Section 9 of the Specific Relief Act, lost such possession upon that decree being set aside on review; the dispossession consequent upon the decree passed on review, was held to be the starting point for limitation under Article 142. I cannot accept the argument of learned counsel for the first defendant, that this rule has application only where it can be shown that prior to the wrongful taking of possession, the plaintiff had not been out of possession for more than twelve years. This would have a bearing on the extinguishment of the plaintiff's title by adverse possession; but there is no such thing in this case. The principle is that once the person having title regains possession, it becomes rightful possession and wipes out the prior period of absence of possession and once he loses possession again, there is dispossession within Article 142. The forcible entry into possession by him may render him liable to a criminal prosecution; but that is a very different thing. Once possession held by him is rightful possession and such possession is within the period of twelve years of the date of the suit, the requisites of a Subsisting title in a suit in ejectment are fulfilled.

6. It has however to be noted, that a different view has been taken in two or three cases where possession accrued under an order or decree passed otherwise than under Section 9 of the Specific Relief Act, has been lost subsequently by such order or decree being set aside. One of the cases cited in that connection Narayan Chetty v. Kannammai Achi ((1905) 28 Madras 338) has been distinguished in the case in Girish Chandra Pal v. Baikuntha Nath Singha, Rustomji the learned commentator has observed at page 817, that in these cases “the court, it appears, considered that plaintiff's possession under the erroneous order or decree not being bona fide, it could not be relied on to save limitation. It is submitted, however, that the question of bona fides does not arise and when the plaintiff's title is once established his possession however obtained, is possession within Article 142, and accordingly if he is again dispossessed, he has twelve years thereafter”. This view has been accepted as sound in Narbadi v. Chhoti (A.I.R 1929 Nagpur 129). I am also of the view, that once it is recognised, that there can be no constructive possession of a wrong-doer during the time that he is not actually in possession, there can be no half-way house by excluding the above category of cases. I therefore come to the conclusion, that the suit is not barred under Article 142 of the Indian Limitation Act. There has been no adverse possession.

7. For the foregoing reasons, the decree under appeal is affirmed and this second appeal dismissed with costs.