Doddipatla Kameswara Rao v. Tarametla Somanna

Judgement

(After setting out the facts and, on an appreciation of the evidence, oral and documentary, confirming the findings of the trial Judge on all other points, His Lordship continued):

2. The learned Advocate for the respondents contended that as the Committee was formed only in December 1939, there could be no adverse possession as against the Committee, till it was formed and the President and Secretary thereof elected.

Article 134-B, Limitation Act runs in the following terms:

Description of suit. Period of limitation. Time from which period begins to run.

By the Manager of a Hindu, Muhammadan or Buddhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been sold by a previous manager for a valuable consideration. 12 years. The death, resignation or removal of the transferor.

3. As the plaintiffs now claim title by adverse possession, they must show that their possession was adverse to the Committee and that they were in uninterrupted and continuous possession for a period of 12 years. The Subordinate Judge accepted this contention and found in paras.36 to 39 that as the Committee was not formed till December 1939 the adverse possession did not at all start.

4. The learned Advocate for the respondents relied on - Palaniyandi Malavarayan v. Vadamalali Vidayan, 2 Mad LW 723 : (AIR 1916 Mad 1001) (A). The headnote sets out the legal position correctly and is in the following terms:

"The right to trusteeship of a temple cannot be acquired by adverse possession so long as there is no lawful trustee who could claim to recover the office from the person who claims to hold it adversely to him."

Sundaram Ayyar, J., had carefully and elaborately reviewed all the Indian and English authorities bearing on this question and held that even on principle, there are good reasons for holding that it would be contrary to public interests that a person should acquire the office of a trustee by mere possession when there is no one competent to recover it from him.

This decision was followed in - Manickkam Pillai v. Thanikachallam Pillai, AIR 1917 Mad 706 (1) (B). The relevant observations are as follows:

"Since however there were no properly constituted trustees of the plaintiff temple there was no person with knowledge of the acts of the defendants or capable of taking proceedings necessary for the protection of the suit property and, therefore, possession was not adverse until the appointment of trustees in 1900"

In Seeti Kutti v. Kunhi Pathumma, AIR 1919 Mad 972 (FB) at pages 984-985 (C), Srinivasa Iyengar, J., followed the two decisions referred to above. The decision in - Murray v. The East India Co., (1821) 106 ER 1167 (D), referred to and relied on by Sundaram Ayyar, J., in - Palaniyandi Malavarayan v. Vadamalali Odayan, (A), was followed in - Nataraja Desikar v. Govinda Rao, AIR 1923 Mad 461 at p.462 (E), in support of the proposition that, when there is no one competent to sue, there can be no cause of action and consequently limitation cannot run because there is no one against whom it can run. In - Subbiah Thevar v. Samiappa Mudaliar, AIR 1938 Mad 353 (F), a Full Bench of the Madras High Court followed the decision in - Murray v. The East India Co., (D), and held that

"there can be no cause of action until there is a party capable of suing and until there is a cause of action there can be no question of the law of limitation coming into operation."

It was further held that, if a sole trustee of a public trust committed a breach of trust, the loss could not be made good, without voluntary action on the trustees part, until there was a new trustee and that the right to sue in such a case lay in abeyance until a new trustee was appointed and that under Art.120, Limitation Act the period of six years limitation would not commence until the new trustee was appointed.

It was further pointed out that if the co-trustees, had also made themselves liable for the breach of trust, the position would be the same as in the case of a defaulting sole trustee while if there were other trustees who were themselves not liable, the period of limitation started running immediately the loss was occasioned because those other trustees had in themselves the right to sue their co-trustees for the loss occasioned by him.

In Venkateswara v. Venkatesa, AIR 1941 Mad 449 (FB) (G), the question arose whether Art.134 (b), Limitation Act applies to the case of an alienation of the property of a Hindu religious institution by the manager for valuable consideration and the succeeding Manager sought to impeach that alienation by suit when there was an interval of time between the death, resignation or removal of the previous manager and the election or appointment of the subsequent manager.

The third question that was referred to the Full Bench was, whether

"if Art.144, Limitation Act be held applicable to the case, adverse possession under that Article must be deemed to have commenced from the date of the death of the previous Matadhipathi who effected the alienation and not from the date of the election or appointment of the plaintiff"

Though in the order of reference Venkataramana Rao, J., referred to the provisions of the several English statutes, the case of (1821) 106 ER 1167 (D), and to the earlier decision of the Madras High Court in AIR 1916 Mad 1001 (A); AIR 1917 Mad 706 (1) (B) and AIR 1938 Mad 353 (F), I find that in the opinion delivered by the Full Bench by Leach, C.J., there is no discussion whatsoever or reference made to those cases while answering the third question referred to it. The only case that was referred to in that connection was the Privy Council decision in Ramacharan Das v. Naurangi Lal, AIR 1933 PC 75 (H). It was held that the starting point of limitation under both Art.134 (b) and Art.144 was the date of the death, resignation or removal of the manager who effected the alienation and not the date of the election or the appointment of his successor.

While Venkataramana Rao, J., and Horwill, J., agreed with Leach, C.J., Abdul Rahman, J., and Krishnaswamy Ayyangar, J., dissented and delivered separate judgments. Abdul Rahman, J., distinguished the Privy Council case in AIR 1933 PC 75 (H), and held as follows:

"It has no bearing to a case like the present where there was no manager in existence to challenge the action taken by the previous manager. If the Math is unable to sue without the intervention of the human agency of its own manager, limitation cannot be, in my opinion, held to run against the Math either"

Krishnaswamy Ayyangar, J., also took the view that the aforesaid Privy Council decision was clearly inapplicable. Both the dissenting Judges held that adverse possession must be held to have commenced from the date of the plaintiffs election or appointment and not earlier.

I have carefully perused the dissenting Judgments as also the opinion of Leach, C.J., and in my opinion, the majority view as to the starting point of limitation under Art.144 is, with great respect, not correct.

I prefer to adopt the view taken by the dissenting Judges and my reasons are as follows: Column 3 of Art.144 clearly sets out that the time from which period begins to run is when the possession of the defendant becomes adverse to the plaintiff which postulates that the plaintiff against whom adverse possession commences must be capable of suing. S.17 Limitation Act, also embodies the same principle.

5. In the Privy Council decision in - Secretary of State v. Debendralal Khan, AIR 1934 PC 23 (I), Lord Maemillan laid down what constitutes adverse possession in the following terms:

"As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the Judgment of the Board in - Radhamoni Devi v. Collector of IKhulna, 27 Cal 943 (PC) at p.950 (J), where his Lordship said that possession required must be adequate in continuity, in publicity and in extent, to show that it is possession adverse to the competitor.

The classical requirement is that the possession should be NEC VI NEC CLAM NEC PRECARIO, Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment so that the person, against whom time is running, ought, if he exercises due vigilance, to be aware of what is happening".

6. This decision is followed in - Srischandra Nandy v. Baijnath Jugal Kishore, AIR 1935 PC 36 (K), wherein Lord Thankerton adopted the aforesaid observations of Lord Macmillan. From those observations it appears to me to be quite clear that in order that possession should be adverse, there must be a competitor capable of suing and exercising due diligence to take steps to oust the adverse possessor. So, if in respect of the Town Hall and Reading Room belonging to the public of Tanuku there was no duly elected Committee, Secretary and President in existence, it is impossible to conceive how any adverse possession would commence or limitation start running.

I therefore prefer to follow the two Privy Council decisions referred to supra and the earlier Madras decisions already discussed and the dissenting Judgments of Abdur Rahman, J. and Krishnaswamy Ayyangar J., in preference to the majority opinion in AIR 1941 Mad 449 (FB) (G), and hold that the adverse possession will not start till the Committee was formed in December 1939 and the Secretary and President were duly elected for taking action for recovering the property from the plaintiffs.

In a recent decision in - Padmanabha Bhatta v. Ramachandra Rao, AIR 1953 Mad 842 at p.844 (L), Govinda Menon, J., delivering the Judgment of the Bench observed as follows:

"By mere assertion it seems to me it is impossible to prescribe a hostile title against the trust because the assertion must be against a person who would be entitled to face the opposition and get rid of that assertion"

7. So, I agree with the finding of the trial court that even on that footing, the plea of adverse possession has not been made out by the appellants.

8. The learned Advocate for the appellants sought to contend that there was no proper election of the Committee and the Secretary and President. I am unable to appreciate how that contention supports him. If really no proper Committee has been constituted or if no Secretary or President had been duly elected, there is no one to represent the Town Hall and Reading Room and so no scope for the running of adverse possession for reasons stated supra.

9. I accept the evidence of D.W.4 and the other witnesses and hold that a proper meeting of the public of Tanuku was convened and the Committee duly formed and the President and Secretary duly elected. I agree with the finding of the Subordinate Judge on this question.

10. In the result, the appeal fails and is dismissed with costs of respondents 1 to 4.

Appeal dismissed.