Spencer, J.:— The land in dispute in this case is part of the gramanatham i.e, unassessed village site, and as such, save in so far as it may be held under grant from Government or is a temple-site and owned as a house-site or backyard, is under Madras Act 3 of 1905 declared to be the property of Government.
2. The Government has asserted a right over this plot in 1906 by including it in a B memorandum for the village in which it lies, and by levying assessment in 1905 as for unauthorized occupation of unassessed land reserved for public purposes: see Ex. A. The appellant's title is based on a patta obtained from Government. Respondent 1 acknowledged in a way the title of Government as the paramount owner by applying in a petition (Ex. 2) to the Deputy Tahsildar for permission to retain the site for building on at a future date. His user of the site by storing straw-ricks upon it will not give him any title as against Government by adverse possession, for such possession must be “adequate in continuity, publicity and extent:” vide Wali Ahmed Chowdhry v. Tota Meah Chowdhry(1). Occupation of a fugitive and temporary nature or temporary use as vacant house-site or backyard is not sufficient to create a title: vide Framji Cursetji v. Gocouldas Madhowji(2) and Chockalinga Naicken v. Muthusami Naicken(3) and Venkatarama Aiyar v. Secy. of State(4).
3. As the District Munsif observed, there is no proof that the site in question ever became private property. There is no permanent appropriation of a site by storing straw here and there in it from year to year when there is straw to store. Regarded as a prospective house-site it would, under the rules of gramanatham, lapse to Government if not built upon within one year after the grant of a patta: vide Board's Standing Orders Vol. 2, p. 45, App. 19.
4. A solitary piece of evidence in the respondents' favour is that afforded by an unregistered sale deed in 1879 in favour of respondent 1's father executed by a person whom he or his ancestors had themselves previously sold it. This only proves that the respondent's ancestors exercised an act of ownership of which Government had no means of becoming aware over the vacant site, to which Government had publicly asserted their title by classifying the land as natham poramboke: vide Krishna Aiyar v. Secy. of State(5).
5. When the property concerned is land, which even before the introduction of Act 3 of 1905 was universally recognized as being the property of the State, a person who executes documents purporting to transfer ownership in it, does so at his own risk, as he should know that the efficacy of the transfer is liable to be repudiated.
6. The animus possidendi of parties to such transactions must necessarily be of an inconsequential character.
7. In this state of things the observations of the District Judge that the title of the Government has not been proved, nor their possession within 60 years, while the defendant's possession for a period of over 30 years is proved by unimpeachable evidence, and that his title evidenced by long user should be declared show, in my opinion, that he has not properly appreciated the evidence.
8. I would therefore remand the suit for a fresh finding on the evidence on record on the issue whether the plaintiff has shown a title superior to the defendants and is entitle to evict the latter. The issues already framed are not adequate for a determination of this question. Six weeks will be allowed for return of the findings and ten days for filing objections.
Sadasiva Aiyar, J.:— The Government's right to give a natham poramboke site for residental purposes, provided it is not already owned and possessed, is indisputable. But a plaintiff who comes into Court in ejectment though claiming under a grant from Government, ought, it seems to me, to prove that the site was not owned and possessed by the defendant at the time of the grant to the plaintiff by the revenue authorities.
9. As regards Ex. 2, the petition to the Deputy Tahsildar by the defendant, it merely prays in a respectful tone that the Deputy Tahsildar may not interfere with the defendant's possession and that he may allow the defendant to retain possession, but the petition, as I interpret it, makes no admission of the right of Government in the site nor does it admit that the defendant has no title.
10. If the defendant merely relied upon the sort of possession which he has proved, it is, of course, as pointed out by my learned brother, impossible to hold that posession was adverse possession against the Government so as to create a title in the defendant. But the defendant does not rely merely upon these acts of possession which, if they stood alone, could not be treated as possession held in denial of the right of the true owner. As stated by Benson, J., and Sundara Aiyar, JJ., in the case of Pattaikara Manakkal v. Chvorakkapatti Munde Kottil(6): “In determining what right adverse possession would confer on the holder, the animus possidendi is the decisive factor. The character in which possession is held must determine the, right which the possession would confer.” Storing hayricks on a piece of waste land, when the title to that land vests in another will not ordinarily raise a presumption that the act of possession is accompanied, with the intention to assert an ownership title over it in denial of the title of the real owner. But in the present case the defendant has let in oral and documentary evidence which is apparently believed by the District Judge to the effect that the defendant's ancestor sold the site to a stranger several years ago and that the defendant's family re-purchased from that stranger in 1879 under Ex. I. It is difficult to hold that a person who has sold and re-purchased a site did not intend to assert an ownership title in himself when exercising even these petty acts of enjoyment, or could have intended not to deny the title in anybody else or it could be inferred (as I think it could be inferred) from these acts of sale and re-purchase, that the acts of enjoyment, like putting up hayricks, will constitute adverse possession against the true owner, though without the proof of such an animus those acts may be merely treated as permissive and not as adverse possession.
11. I am rather inclined to hold in this case that the learned District Judge intended to find from the sale and the resale that the plaintiff and his ancestors did entertain the intention to hold adversely against the true owner whoever he may be; but as my learned brother thinks that the District Judge “has not properly appreciated the evidence” which has been let in this case and as I find that the judgment of the learned District Judge does not clearly state that he means to find that the defendant's possession under the circumstances of this case ought to be treated as adverse, I concur in the order proposed by my learned brother.
12. [In compliance with the above order of this Court the District Judge of Cuddapah submitted the following:]
FINDING
13. The point on which fresh finding is called for is as to whether plaintiff has shown a title to the suit site superior to defendant's and is entitled to evict the defendant.
14. 2. Plaintiff's title is based on a patta which he recently obtained from Government for the suit site. But while his own and sole witness, the karnam, admits that the defendant has been in possession and enjoyment of the suit site by storing his hay there, i.e, by using it as a strawyard for over 30 years that he is aware of, plaintiff has not been able to adduce any evidence either that the land belongs to Government or that it was in enjoyment of the Government within 60 years or, in other words, the possession of the defendant and his predecessors-in-title commenced any time within 60 years.
15. 3. Defendant has also proved by the evidence of his witnesses 2 and 4, that the site having originally belonged to and sold by his senior paternal uncle, Obula Kondappa, to his witness 4 Virupakshayya for a debt, his (defendant 1's) father again purchased it from his witness 4, by means of Rs. 1 in 1879 for consideration.
16. 4. It is no doubt true that the land was entered as gramanatham in the Diglott Register in the Settlement, but it has been held in Krishna Aiyar v. Secretary of State and Venkatarama Aiyar v. Secretary of State, that such a classification is no legal evidence of title in the Government.
17. 5. I hardly could think that possession and enjoyment as a strawyard for an unbroken period of 30 years could justly be said to be merely fugitive or temporary in its character.
18. 6. That being so, I think it must be held that plaintiff has failed to show a superior title to the defendant so as to evict the defendant from the suit site. [This second appeal coming on for final hearing after the return of the finding of the lower appellate Court upon the issue referred by this Court for trial the Court delivered the following:]
JUDGMENT
19. We find no ground on which we can refuse to accept the finding and accepting it we dismiss the appeal with costs.
S.N/R.K
20. Appeal dismissed.