Linga Munisami Reddy v. P.S. Koindasami Naicken

1. The suit was brought for a declaration of the plaintiff's title to the properties in Schedules A, B and C and for possession of the same with mesne profits. The properties in suit were joint family properties belonging to three brothers Linga Subba Reddi, Linga Rama Reddi and Linga Chenga Reddi, who were sons of Linga Pola Reddi. The plaintiff to son of the third son, Linga Chenga Reddi. Of the other two brothers, Rama Reddi died without male issue, and Subba Reddi, the elder brother, had one son Munisami Reddi, who died unmarried in 1909. All the properties in A Schedule including the family house were Sold to 1st defendant for RS. 400 in 1898 under Exhibit IX by Linga Rama Reddi Munisami Redi the son of Linga Subba Reddi. The properties in B Scheduled were sold to 1st defendant in 1903 under Exhibit XXIII by 3rd defendant Muniammal, who is a doughter of Linga Suba Reddi. The plaintiff, who is the son of Linga Chenga Reddi, is the sole surviving male member of the family. The lower Court dismissed the suit as being time-barred without deciding the other issues. After the sale-deed Exhibit IX was executed, the 1st defendant who purchased the property leased it again his vendors, but in 1901 by a letter, Exhibit XIII, they relinquished their cultivation over some of the fields, and in the following year (1902) they renewed their cultivation of some fields for Fasli 1312 only. See Exhibits XIV and XIV-a.

2. The question is whether the defendants have made out a title by adverse possess so as to bar the plaintiff's present Suit. If the suit were brought against co-parceners to enforce a right to share in the co-parcenary property, Article 137 of the Limitation Act would apply and it would be necessary to prove that the plaintiff had been excluded from the joint family property to his knowledge.

3. The plaintiffs father went and lived for some time at Alapakkam Kandugai, while his brothers lived in the family house at Veppaguntareddipalayam, in which village the suit Lands are situated. Possession in the present case not being with co-parceners but with alienees. I am of opinion that Article 144 is the Article applicable to the case. See Bhavrao v. Rakhmin 23 B. 137 : 12 Ind. Dec.(N.S.) 91(F.B.).

4. The questions for our decision are, (1) whether the defendant's possession was open and adverse to the plaintiff, and (2) when did limitation begin to run.

5. Besides the oral evidence, there is the evidence of puttahs, Exhibit XVIII series, in the 1st defendant's name, the receipts for Rist, Exhibit XVII series, notices of attachment for rent by the Shrotriemdars, Exhibit XIX series, also evidence as to other civil proceedings in which Rama Reddi himself gave evidence (See Exhibit it) and criminal proceedings, by all of which the 1st defendant has succeeded in proving his adverse possession after the date of the sale.

6. The plaintiff has changed his case at the trial from what it was in the plaint. In paragraphs 7, 10 and 11 of the plaint, the plaintiff stated that to his knowledge the suit properties had been mortgaged, by Linga Rama Reddi, acting in concert with Munisami Reddi, the son of Linga Subba Reddi, and that he and his father only became aware that the transactions were, sales and not mortgages after the death of Linga Rama Reddi, that is in 1911. When he was in the witness-box, the plaintiff did not repeat the allegations in the plaint about the mortgage beyond saying when he was cross examined, that the statements in paragraph II of the plaint were true. In examination in-chief, he said that Rama Reddi told him, that he had executed some nominal documents (apparently sale-deeds) in favour of the 1st defendant who was his friend including a nominal muchilika, that Rama Reddi did not tell him the details, nor did tie take the trouble to ascertain them, that after Rama Reddi's death, he learnt that the pattaks stood in the names of the 1st 2nd and 3rd defendants and that Rama Reddi had fraudulently or nominally conveyed the properties in their names. He admitted that he knew about Rama Reddi's management for the last 25 years and that he used to attend to the cultivation of the plaint lands and that he was living, in the plaint. village. The first story put forward in the plaint that he was under the impression that the lands, were mortgaged and thus redeemable has not been substantiated and I find it difficult to believe that he was unaware of the defendant's adverse possession.

7. In 1910 there was litigation between the 1st defendant and Nallamuthu Ammal in which the District Munsif found that the defendant was in adverse possession for over the statutory period. The plaintiff in this suit admits that he was aware of that litigation. In the course of the trial of Original Suit No. 364 of 1909, Rama Reddi was examined as a witness and he then admitted (See Exhibit III-a) that he was in possession of the properties till the date of sale to, defendants and that he ceased paying Rist after the transfer of the properties to the 1st defendant's name. It is impossible to believe that the plaintiff was unaware of this change on possession when he was living in Veppaguntareddipalayam but it is not necessary under Article 144 to prove the exact date when he became aware that he had been excluded from a Right to share in the joint property. So long as Rama Reddi was cultivating the lands, the plaintiff might have assumed that Rama Redi's on his own behalf and for the benefit of the co-parceners. But when that possession ceased and the lands came entirely into the possession of strangers, the possession of these third parties was a fact that was open and public and within the knowledge of all concerned. For purposes of Article 144, it is clear that there, was adverse possession and that the date of limitation beginning to run against the plaintiff must be taken as starting from the date when the vendors ceased to cultivate the property that they had alienated, that is, in 1902 at the latest See Exhibit XIV series Vide Malkappa v. Mudrappa 17 Ind. Cas. 657 : 37 B. 84 : 14 Bom. L.R. 931.

8. In MuthuKrishna Iyangar v. Sankaranarayana Iyer 25 Ind. Cas. 573 : 16 M.L.T. 196 : 1 L.W. 699 : (1914) M.W.N. 708 : 27 M.L.J. 600 where two certain strangers with a direction to redeem a prior mortgage in favour of another party and the purchasers remained in possession, it was held by Ayling and Tyabji, JJ., that their possession was not adverse to the remaining co-parceners who brought a suit for redemption. As I understand the decision, the possession of defendants Nos. 5 to 7 was referred to possession of the mortgagees whom they redeemed, but it is not clear why defendants Nos. 5 to 7 were not regarded as being in possession tinder their purchase which was adverse to the plaintiff. I am doubtful whether that decision, cited for the respondents, proceeded upon sound principles, but it is not necessary to say more, as the facts were dissimilar to those before us, seeing that here the plaintiff abandoned his plea that defendants held the property as mortgagees. I think that the lower Court was right in holding that the present suit was out of time as regards the lands which formed the property of the plaintiff's family and were sold under Exhibit IX. But as regards the house which is an item of A Schedule property, the plaintiff says in his evidence that in that house he and Vengammal were living and this statement is confirmed by the statement of D.W. No 4, Alwar Reddi, who knows of the fact that Vengammal was living in that House. In respect of this item, the defence that the claim is time-barred does not arise. The plaintiff is entitled to one-third share of this item of property.

9. C Schedule property consists of house sites occupied by a parachery. The 1st defendant in his evidence says that he purchased this property for a hundred rupees, five or six years after the sale-deed Exhibit IX, and that there was no sale-deed but the occupants of the site wrote Exhibit XXII to him, stating that they were prepared to agree to any arrangements that he might make and this was attested by Rama Reddi and that upon that he got possession of the parachery. There is no evidence that any rent was paid by the occupants. Exhibit XXII appears to bear date of 1907. I consider as regards this item, that 1st defendant, has not proved that adverse possession, if any, began sooner than 1907. The suit was, instituted, in 1917. The plaintiffs' claim in this respect is not time barred and the plaintiff will get a decree for this item to which he is entitled by survivorship as it is included in Exhibit A.

10.I would, therefore, modify the lower Court's decree in respect of the house and C Schedule property. In other respects the appeal must fail and be dismissed. The appellant and 1st respondent will give and receive proportionate costs throughout.

11. The Subordinate Judge will pass a final decree providing for a division of the family house into three parts and saving the plaintiff one part.

Ramesam, J.

12. I agree. The facts are stated by my learned brother and need not be repeated. The finding of the Subordinate Judge on-the first issue, viz., that plaintiff's father, Chenga Reddi, was not shown to have separated from the family is not questioned before us. The Vakil for the respondents does not press for a finding on the 3rd issue. It follows therefore, that the plaintiff will be entitled to a decree for one-third share of the suit properties in Schedules A and B provided the suit is not barred by limitation.

13. The article of the limitation act applicable is not Article 127 but Article 144 Vide Bhavrao v. Rakhmin 23 B. 137 : 12 Ind. Dec. (N.S.) 91 (F.B.); Muklabal Singh v. Haran Singh 6 Ind. Cas. 841 : 7 A.L.J. 783; Malkappa v. Mudkappa 17 Ind. Cas. 657 : 37 B. 84 : 14 Bom. L.R. 931; Muthukrishna Iyangar v. Sankaranarayana Iyer 25 Ind. Cas. 573 : 16 M.L.T. 196 : 1 L.W. 699 : (1914) M.W.N. 768 : 27 M.L.J. 600. As to whether knowledge (actual or constructive) of the plaintiff is necessary for the alienee's possession to become adverse, there is a conflict between the decision in Muthukrishna Iyangar v. Sankaranarayana Iyer 25 Ind. Cas. 573 : 16 M.L.T. 196 : 1 L.W. 699 : (1914) M.W.N. 768 : 27 M.L.J. 600 and that in Bhavrao v. Rakhmin 23 B. 137 : 12 Ind. Dec. (N.S.) 91 (F.B.). The latter case was not cited before the learned Judges who decided Muthukrishna Aiyangar v. Sankaranarayana Iyer 25 Ind. Cas. 573 : 16 M.L.T. 196 : 1 L.W. 699 : (1914) M.W.N. 768 : 27 M.L.J. 600 in which the decisions in Peria Aiya Ambalam v. Shunmugasundaram 22 Ind. Cas. 615 : 1 L.W. 119 : 15 M.L.T. 112 : 26 M.L.J. 140 : 38 M. 903 : (1914) M.W.N. 417 a case of possession having passed from the mortgagee, and in Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836 a Case of one of several heirs entering info possession, were relied on. It may be that, if the transaction under which the alienee obtains possession is consistent with the possession not being adverse to the plaintiff as where a member sells only his share but, on account of the difficulty of delivery of possession of an undivided share, deliver possession of the whole property--there is no adverse possession against sharer other than the alienee. But where the sale purports to be of the whole interest in the property and the purchaser enters into possession in assertion of a claim to the whole his possession is prima facie adverse to the other members. I am, therefore, inclined to agree with the view in Bhavrao v. Rakhmin 23 B. 137 : 12; Ind. Dec. (N.S.) 91(F.B.) and not with the decision in Muthukrishna Iyangar v. Sankaranarayana Iyer 25 Ind. Cas. 573 : 16 M.L.T. 196 : 1 L.W. 699 : (1914) M.W.N. 768 : 27 M.L.J. 600. At page 574 page of 25 Ind. Cas.--[Ed.] of the latter case Tyabji, J., says :

"It is difficult to understand how a person holding a property with limitations can pass to a transferee a title free from these limitations."

It is true such a person cannot transfer a perfect title to the alienee but he may purport to do so and follow it up by delivering possession, and the transferee by the assertion of a full title accompanied by the possession may perfect a title at the end of twelve years against all persons whose present right to possession is affected by the sale. It may be that, as pointed out in Malkappa v. Mudkappa 17 Ind. Cas. 657 : 37 B. 84 : 14 Bom. L.R. 931 when the vendors continue in possession as tenants the constructive possession of the vendee through the tenants is not adverse to the co-parceners.

14. In this case, though the sale was in 1898 the vendors continued to be in possession, as tenants up to the end of Fasli 1311. On 15th July 1901, Rama Reddi gave notice (Exhibit XIII) to the first defendant that he may lease out the lands to others as he pleased. However, for Fasli 1312, the vendors remained tenants for some of the lands, and of the others, Items Nos. 58 to 63, 66 to 68, 75 and 78 were leased under Exhibit XIV-b, Item No. 7 under Exhibit XIV-c and Item No. 3 (which is wrongly entered as 1541 instead of 1415 in the Schedule, 1541 being 67) and Items Nos. 64, 65, 76 and 77 under Exhibit XIV-d to strangers. In 1903 Items Nos. 24 to 38 were leased out to D.W. No. 4 under Exhibit XV; and D.W. No. 1 {vide page 38) and D.W. No. 4 (page 44) prove that the rest of the lands were kept under the cultivation of the first defendant's farm servants. This evidence is corroborated by that of P.W. No. 5 (at page 34) and is supported by the other facts, viz., that from 1901 onwards, the kist due to the Shrotriemdar was paid by the defendants and that no member of the plaintiff's family paid it, that the pattah was transferred to the 1st defendant and notices of attachment were issued to first defendant Exhibit XIX-A (Fasli 1312) for Items Nos. 31 to 36 and Exhibit XIX-b [Fasli 1313) for Items Nos. 3 to 5 and 7 to 9. The first defendant also redeemed the prior mortgagees under Exhibits XX and XX-a. D.W. No. 1 and D.W. No 4 also swear that a well was sunk in the field called Athumudu (which consists of Items Nos. 1 to 9, 15 and 49 to 51). We also find that D.W. No. 5 cultivated Items Nos. 31 to 48 under Exhibit XXI (in 1915). It is true that there is no specific documentary evidence in respect of Items Nos. 10 to 14, 16 to 22, 39 to 48, 52 to 57 and 69 to 74 as to their possession prior to 1905. But I believe the evidence of D.W. No. 1 and D.W. No. 4 as to their being kept under the cultivation of the defendant's farm servants. The above items are all of Schedule A. As to lands in Schedule B the 3rd defendant got into possession prior to 1903 (see P.W. No. 2) and sold them in 1903 to first defendant under Exhibit XXIII. As to the house-sites ,in Schedule C there is no sale-deed and the letter, Exhibit XXII, from the tenants is not enough to constitute adverse possession See Pasupati v. Narayana 13 M. 335 : 4 Ind. Dec. (N.S.) 945. On this evidence I think it must be held that first defendant has been in adverse possession of all the lands in Schedules A and B from 1903 onwards. The plaintiff admits he view of their sales and according to his evidence, he has been in the village from 1905 onwards and it must be inferred that he knew the change of possession. As to the house in Schedule A it is admitted by both sides that Rama Reddi lived in it till 1911 and after his death, his widow has been living. On the principle stated in Makappa v. Mudkappa 17 Ind. Cas. 657 : 37 B. 84 : 14 Bom. L.R. 931 it must be held that there has been no adverse possession of the house on the part of the first defendant even if Rama Reddi and his widow lived in it with his permission.

15. The result is that the decree of the Court below is modified by giving the plaintiff a preliminary decree for the sites in Schedule C and £rd of the house after division. The Subordinate Judge will pass a final decree after division. The parties (appellant and first respondent) will give and receive proportionate costs throughout.