A.R. Sanjeevi Naicker vs P.M. Shanmugha Udayar

Ramamurti, J.—The third Defendant, who had obtained a release of the rights of Defendants 1, 2 and 4, is the Appellant in the second

appeal, which relates to three items of properties, originally situated in Ami Jagir which had been taken over under the provisions of the Estates

Abolition Act. One Sevugan Chettiar purchased these properties from Defendants 1 to 4 under a sale-deed, exhibit A-l of the year 1928. In

respect of these properties, there was some litigation, and, in pursuance of a decree for possession, Sevugan Chettiar took possession on 14th

April 1945, as evidenced by exhibit A-6 (delivery receipt). This Sevugan Chettiar sold the suit properties to the Plaintiff under exhibit A-7 on 24th

January 1957, who has filed the suit on 15th April 1957 for declaration of title and for possession of the properties. The last date for filing of the

suit would be 14th April 1957, but that happened to be a Sunday, and it was, therefore, filed on the next day, i.e., on 15th April 1957.

It is unnecessary to refer in detail to all the facts of the case, as only two points were urged in the second appeal:

(i) the effect of the combined operation of Section 4 and Section 28 of the Limitation Act and (ii) the scope of Section 64-C of the Estates

Abolition Act.

I shall first deal with the second point.

After the Jagir was taken over, Defendants 1 to 4 applied for patta, and patta was granted to the third Defendant by the Settlement Officer. Mr.

Vedantachari, learned Counsel for the Appellant, contended that, by reason of Section 64-0 of Madras Act No. XXVI of 1948, which provision

was added by Section 25 of Madras Act XLIV of 1956, the order that was passed by the Settlement Officer issuing patta in favour of the third

Defendant had become final and was not liable to be questioned in any Court of law. The relevant rule made by the Government is by notification,

dated 17th October 1955, conferring jurisdiction upon the Assistant Settlement Officer and the revisional authority, for issuing of patta u/s 11.

Learned Counsel contends that the decision of this Court, which had taken the view that, either before or after the repeal of Section 56 in Act

XXVI of 1948, the issue of a patta, would not take away the jurisdiction of a Civil Court to adjudicate upon competing titles have not considered

the scope of Section 64-C. There is no substance in this contention. The principles laid down in the decision of this Court in Soosai Udayar v.

Andiyappan (1959) 1.M.L.J. 195 and Krishnaswami Thevar v. Perumal Konar (1961) 1.M.L.J. 168 would clearly govern despite Section 64-C.

It is unnecessary to discuss those cases in detail, as the principle enunciated in those decisions is clear, i.e., only when the revenue authorities can

grant a particular relief that their decisions would become final to that limited extent. But if the revenue authorities cannot grant a particular relief,

namely, relief of possession and declaration of title or relief of injunction the orders passed or the decisions rendered by the authorities concerned

u/s 64-C of Madras Act XXVI of 1948 cannot operate as a bar to the Civil Court entertaining the suit and adjudicating upon such disputed

questions which are out of the purview of the authorities functioning under the Act. If before the repeal of Section 56, the position was that a party

was entitled to file a suit for adjudication of his title, for possession, and for injunction despite any order passed by the authorities under the Act, I

do not see why Section 64-C should have any higher operation than Section 56, which, also contained a similar provision. It is sufficient to refer to

the following observations of the learned Judge Ramachandra Ayyar J. (as he then was) at page 200 in Soosai Udayar v. Andiyappan (1959) 1.

M.L.J. 195:

In the instant case the relief claimed is one of possession. Neither the Settlement Officer nor the Tribunal has any jurisdiction to grant such a relief.

It may be that for the purpose of granting relief the question whether which of the parties had kudivaram rights may have to be incidentally decided

but such incidental decision is only to give relief as to possession and cannot bind the Settlement Officer or the Tribunal when they have to decide

that question under the Act. Section 3(d) of the Act itself recognizes that if a person is prima facie entitled to patta, his possession should not be

disturbed by the Government. A fortiori his possession should be protected by the Courts as against others. Possessory title is well-known under

the law. In Narayana Row v. Dharmachar (1902) ILR Mad. 514 it was held that possession is good title against all but the true owner. In the case

of a notified estate no question of title can arise as title would be with the Government till the grant of patta. The Plaintiff if he proves possessory

title should obtain possession against a trespasser without enabling the latter to acquire title by adverse possession. Similarly in a case where the

Plaintiff sues for injunction, relief can be given on the basis of possessory title and it would not be necessary to investigate the question of title so

long as the Defendant is not the owner. It may be that in such cases the question as regards the right to occupancy before the estate was taken

over by the Government has to be investigated but such investigation as stated already is only incidental to the grant of relief, Bearing in mind the

principle laid down by Ramaswamy J., in Pachai Ammal Vs. Anguswami Gramani and Others, that it is the substance of the plaint that has got to

be looked into in deciding the question of jurisdiction. I find that in the present case the substantial dispute is as regards possession, a relief which

cannot be granted by the tribunals under the Madras Act XXVI of 1948 and which could be granted only by the Civil Court. Such being the case I

am of opinion that the Civil Court should entertain the suits. To hold otherwise would lead to certain practical difficulties. Let us take a case where

the Plaintiff is a lawful ryot but the Defendant trespassed into the property. If the Plaintiff''s suit for possession is not entertained by the Civil Court

and if he is asked to go and agitate his right to patta before the Settlement Officer and the Tribunal, it may be that by the time he gets his right to

patta declared by those tribunals the claim for possession would have become barred by adverse possession by the Defendant. I am therefore of

opinion that the suit in the form in which it was laid in the present case is cognizable by the Civil Court.

I, therefore, overrule this objection.

2.1 Learned Counsel next contended that, by the expiry of twelve years'' period from 14th April 1945, i.e., by 14th April 1957, his client had

acquired title by adverse possession and prescription by enjoyment for twelve years and the fact that the Plaintiff could file the suit on the Monday

following by reason of Section 4 of the Limitation Act, will not affect the title which the Defendant had acquired by adverse possession. He

contends that the principles applicable to the application of Sections 12, 14 and 15, Limitation Act, are not applicable to a case governed by

Section 28 of the Limitation Act. For this, he relies upon the difference in the language employed in Sections 12 to 15 and that in Section 28.

Learned Counsel drew my attention to the decision of the Privy Council in Maqbul Ahmad v. Pratap Narain Singh ILR (1935) All. 242, 248

(P.C.) in which the Privy Council had to consider the scope of Sections 14 and 4 of the Limitation Act. In that case, the mortgagee decree-holder

prosecuted certain proceeding for obtaining a final decree which became infructuous under circumstances entitled him to the benefit of Section 14

of the Limitation Act for excluding the time spent in prosecuting the said prior infructuous proceedings. At the same time, while the decree holder

was prosecuting the proceedings, summer vacation intervened, and, on behalf of the decree-holder it was contended that in addition to the

exclusion of the time u/s 14, he would also have the benefit of Section 4. The Privy Council rejected that argument, taking the view that the

language of Section 4 does not enlarge the period of limitation but that it merely enables the Plaintiff to file the suit when the proper Court

reopened. Learned Counsel for the Appellant relied upon the following observations of the Privy Council, as supporting his present contention:

If the Appellants were entitled to succeed in regard to the first period, that is, from the 23rd December, 1920, to the 8th November, 1921, having

regard to the length of that period, that would be sufficient for them. Their Lordships, however, are of opinion that the Court in India were clearly

right in the way they dealt with the point. It is impossible to say, apart from any other objection, that the application to obtain execution under the

preliminary decree was an application for the same relief as the application to the Court for a final mortgage decree for sale in the suit.

That being so, it is not permissible, on the basis of Section 14 in computing the period of limitation prescribed, to exclude that particular period.

The second period is the period of the long vacation. In regard to that matter, the Appellants seem to their Lordships to be in a position which is in

the nature of a dilemma. It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in

Section 4 indicates that it has nothing to do with computing the proscribed period. What the Section provides is that, where the period prescribed

expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens; so that there

is nothing in the section which alters the length of the prescribed period ; whereas Section 14, and other sections of a similar nature in the Act, the

direction begins with the words: In computing the period of limitation prescribed fox-any application certain periods shall be excluded. It therefore

seems to their Lordships that, where there is ground for excluding certain periods u/s 14 in order to ascertain what is the date of the expiration of

the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to

say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires,

twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained.

Apart from this decision of the Privy Council and other cases which had dealt with the relative operation of Section 4 and Sections 12 to 15,

Counsel on both sides have not drawn my attention to any case which has delt with this question of the combined operation of Section 4 and

Section 28 dealing with suits for possession of immovable property. The position is so obvious that none had raised the present objection. On a

consideration of all the aspects of the matter, I am of the opinion that the principle of the decision of the Privy Council referred to above has no

application to the instant case. Section 28 provides that at the termination of the period limited to any person for instituting a suit for possession of

any property, his right to such property shall be extinguished. Article 142 provides that the Plaintiff must file the suit within twelve years from the

date of dispossession, while Article 144 provides that the suit should be filed by the Plaintiff within twelve years from the date when the possession

of the Defendant became adverse to the Plaintiff. Mr. Vedantachari, learned Counsel, contends that under Article 144, the Defendant''s possession

became adverse on 14th April 1945, and he had perfected his title on 14th April 1957 and that the fact that the Plaintiff may have a right to file the

suit relying upon Section 4, on the succeeding Monday cannot affect the right which had accrued to the Defendant under Article 144. Learned

Counsel for the Respondent however contends that the combined operation of Section 4 and Section 28 is to preserve the right of the Plaintiff till

the Plaintiff files the suit on the reopening day. According to learned Counsel the time prescribed for filing the suit expired not on Sunday (14th

April 1957) but on Monday (15th April 1957) by reason of Section 4. He, therefore, urges that, if his title had not been extinguished, but was

subsisting he would undoubtedly be entitled to file the suit for possession. Under Article 142, he can file the suit within 12 years from the date of

dispossession and that suit can be filed on 15th April 1957 by reason of Section 4. I think this is the correct position, as otherwise there will be this

anomally and absurd result that by reason of Section 4 and Section 28, the Plaintiff will have a subsisting title and an undoubted right to file the suit

for possession, while by reason of the expiry of twelve years, the Defendant would have acquired title by adverse possession. In my opinion, all the

provisions Section 4, Section 28, Article 142 and Article 144 must be read together and applied. As the suit was filed on the last day as provided

under the Schedule taken along with Section 4, the suit would be in time.

The appeal is dismissed, but, in the circumstances, there will be no order as to costs. Leave granted.