Dandamudi Narasayya and Another vs Movva Subbayya and Others

Alfred Henry Lionel Leach, C.J.—The only question in this appeal is one of limitation and we consider that it has been rightly decided by

Abdur Rahman, J., from whose judgment this appeal has been preferred under Clause 15 of the Letters Patent.

The suit was filed by the respondents for a declaration of title to certain immovable property in the Kistna District and a decree for possession

and mesne profits. On the 4th May, 1915, the first appellant gave the property in suit to the first respondent who is his brother-in-law under a

registered deed. Thereupon the first respondent and his brother, the second respondent, went into possession and remained in possession until the

16th July 1918, when the appellants entered upon the property. On the 9th February, 1930, the respondents asserted their title and dispossessed

the appellants who within six months brought a suit u/s 9 of the Specific Relief Act. As they established their possession within six months of the

suit, a decree was passed in their favour. This resulted in the Court restoring possession to the appellants on the 4th September, 1931. The decree

passed in favour of the appellants did not, of course, affect the question of title and the respondents were at liberty to file the suit but of which this

appeal arises. This they did on the 24th November, 1931. The appellants raised three pleas in bar. In the first place they said that the deed Of gift

executed by the first appellant in favour of the first respondent was a nominal transaction and consequently the title remained in the first appellant.

In the second place they averred that the respondents had not been in possession of the property within 12 years of the suit. In this connection they

contended that the period from the 9th February, 1930 to the 4th September, 1931, should be ignored. In the third place they averred that they

had acquired title by adverse possession.

The District Munsiff of Gudivada who tried the suit held that there had been no valid gift by the first appellant to the first respondent, that the

respondents had not been in possession of the property within twelve years of the institution of the suit and that the plea of title by adverse

possession raised by the defendants was well founded. Consequently he dismissed the suit. The respondents appealed to the Subordinate Judge of

Masulipatam, who disagreed with the findings of the District Munsiff. The Subordinate Judge held that the gift was a real one and the deed valid,

that the respondents had been in possession until the 16th July, 1918 and also from the 9th February, 1930, until the 4th September, 1931, and

that the appellants had not established a title by adverse possession. The result was that the respondents'' suit was decreed with costs. The

appellants appealed to this Court, but without success, Abdur Rahman, J., agreeing with the findings of the Subordinate Judge.

Admittedly, if the Court can have regard to the entry of the respondents upon the property on the 9th February, 1930, the suit was filed in time.

It is said, however, for the appellants that as they were successful in their suit u/s 9 of the Specific Relief Act, the Court cannot have regard to what

happened between the 9th February, 1930 and the 4th September, 1931. In rejecting this contention Abdur Rahman, J., observed that the act of a

person who takes possession, either forcibly or otherwise than in due course of law, may be high-handed and not legal in the sense that it is not

authorised by law, but if he happens to be the rightful owner there is no justification for holding that the period during which he had both title and

possession should not be taken into account.

In this Court, Mr. Satyanarayana Rao relied on two cases, Narayanan Chetty v. Kannammal Achi ILR (1904) Mad. 338, and Rajagopalan v.

Somasundara Thambiran (1906) 17 M.L.J. 149 : ILR 30 Mad. 316, both of which were considered by Abdur Rahman, J. We agree with the

learned Judge that they are not in point. In Narayanan Chetty v. Kannammal Achi ILR (1904) Mad. 338, the plaintiff was placed in possession of

immovable property under a decree of the Court in the month of July, 1896. On appeal it was held that he had been wrongly placed in possession

by the trial Court and in pursuance of the appellate decree he was dispossessed in 1898. He claimed that for the purpose of limitation his

dispossession should be deemed to start from the date in 1898 when the appellate decree was enforced. This contention was however rejected.

The Court considered that as he had been given possession under an erroneous decree of the Court the period of his possession should be

ignored. In Rajagopalan v. Somasundara Thambiran (1906) 17 M.L.J. 149 : ILR 30 Mad. 316, the decision in Narayanan Chatty v. Kannammal

Achi was approved.

This is not a case where the plaintiffs were placed in possession under an erroneous decree of Court. They went into possession of the property

oh the 9th February, 1930, on the strength of their own title to the property. The appellants were in possession as trespassers and the fact that they

succeeded in the suit u/s 9 of the Specific Relief Act did not make their trespass any the less. They remain trespassers in spite of their decree.

In the course of his judgment Abdur Rahman, J., quoted the following passage from the judgment of Lord Selborne in Lowe v. Telford (1876) 1

A.C. 414.

In the case also cited at the bar of Jones v. Chapman (1849) 154 E.R. 717 : 2 Ex. 821, it is accurately stated by Mr. Justice Maule, that ''as soon

as a person is entitled to possession and enters in the assertion of that possession or, which is exactly the same thing, any other person enters by

command of that lawful owner so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If there

are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question

is which of those two is in actual possession, I answer, the person who has the title is in actual possession and the other person is a trespasser.

They differ in no other respects. You cannot say that it is joint possession; you cannot say that it is a possession as tenants in common. It cannot be

denied that one is in possession and the other is a trespasser''. And in Harvey v. Bryges (1845) 153 E.R. 546 : 14 M. & W. 442, it is pointed out

that so far as relates to the fact of possession and its legal consequences it makes no difference whether it has been taken by the legal owner

forcibly or not.

These observations have full force here. The respondents who are the rightful owners of the property were in possession of what belonged to them

within 12 years of the suit and this being so, their suit was filed in time. A decree passed u/s 9 of the Specific Relief Act is very different from an

erroneous decree for possession based on title, as was the case in Narayanan Chetty v. Kannammal Achi ILR (1904) Mad. 338.

For these reasons the appeal will be dismissed with costs.

We note with regret that the trial of the suit took nearly five years in the District Munsiff''s Court. There can be no excuse why a suit of this

nature should have taken this length of time before it was brought on for hearing. The attention of the District Munsiff concerned will be drawn to

this fact.