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Judgment
Umamaheswaran, J.—The Plaintiff is the Appellant. The simple question for consideration in the second appeal is as to whether the Defendants have acquired title to the suit property by adverse possession. The trial Court held that the Defendants did not make out their plea of adverse possession, and decreed the suit. On appeal the Subordinate Judge reversed the judgment and decree of the District Munsif. Hence the Plaintiff has preferred the second appeal.
For the purpose of appreciating the plea of adverse possession, it is necessary to set out a few relevant facts. The suit properties belonged to K. Venkatacharyulu who executed a usufructuary mortgage, Ex. P. 4, dated 8-6-1874 for Rs. 4,000/- in favour of V. Raghavalu and two others for a term of 68 years ending with 8-6-1942. The Plaintiff is the adopted son of Srinivasacharyulu who obtained an assignment of the usufructuary mortgage under Ex. P. 5 dated 28-12-1880. In spite of the execution of the assignment deed Ex. P. 5, the mortgagor''s daughter''s son Nelaturu Narasimhacharyulu filed a suit O.S. No. 120 of 1925 on the file of the Subordinate Judge''s Court of Bapatla, for redemption of the mortgage and for the recovery of possession of the hypotheca. The suit was compromised on 30-7-27 as per Ex. D. 2.
As the Plaintiff did not pay the amount to the Defendants as per the terms of the compromise half the property was taken by the Plaintiff and half by the Defendants therein. The property obtained by the Plaintiff under the compromise was subsequently sold to the Defendants and the Defendants have been in open and continuous possession from the date of the compromise in regard to a half and from the date of the sale in regard to the other half. The short question, therefore, is whether the possession of the Defendants from the date of the compromise and the sale is adverse to the Plaintiff, the adopted son of the assignee of the equity of redemption under Ex. P. 5.
It is in evidence that Narasimhacharyulu, who instituted O.S. No. 120 of 1925, is the husband of the Plaintiff''s son-in-law''s sister. In the reply notice issued by the Defendants, Ex. P. 6 (a), as also in the written statement, the Defendants averred that the Plaintiff was fully aware of the previous suit and the compromise entered into . therein. The Plaintiff who examined himself as P.W. 1, did not deny knowledge of the suit or the compromise. So, no question was put to him in the cross-examination as to whether he was not present at the time of the suit and at the time of the compromise. The 1st Defendant who examined himself as D.W. 1, stated that the Plaintiff was aware of the suit and that he was also aware of the compromise, though he could not say whether he was present on the date of the compromise. Nothing was elicited in the cross-examination to lead to the conclusion that what the .1st Defendant stated in the examination-in-chief was not true.
D.W. 2 stated that the Plaintiff accompanied Narasimhacharyulu at the time of the compromise. The Subordinate Judge accepted the evidence of D.Ws. 1 and 2 and found that the Plaintiff was fully aware of the suit and the compromise. He, however, held that the conduct of the Plaintiff was not such as to estop him from claiming the suit properties. If the Plaintiff knew fully that a suit was filed by Narasimhacharyulu for redeeming the mortgage and that it was compromised, under which half the property was given to the mortgagees and half taken by the mortgagor''s representative, there can be no doubt he knew that the mortgagee & Narasimhacharyulu were in possession from the date of the compromise in their own right and adversely to him.
Subsequently, Narasimhacharyulu sold the property to the Defendants and their possession as from the date of purchase is adverse to the Plaintiff. Therefore it is clear according to the Full Bench decision of the Madras High Court in-Poriya Aiya Ambalam v. Shanmugasundram AIR 1914 Mad 334 (2) (A) that the possession of Narasimhacharyulu and the Defendants was adverse to the Plaintiff and the Defendants acquired title by prescription. The head-note in 33 Mad 903 (A)'' is in the following terms:
Where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such possession will be adverse to the mortgagor from the time the mortgagor has knowledge of the assertion (though he may not then be entitled according to the terms of the mortgage to recover possession from the mortgagee).
If the equity of redemption vested in the Plaintiff and he alone was entitled to redeem the mortgage the assertion of title by Narasimhacharyulu was hostile to the Plaintiff and his (i.e., Narasimhacharyulu''s) obtaining possession of half the property and permitting the mortgagee to be in possession of the other half was a clear assertion of their adverse right to the knowledge of the Plaintiff who was assisting and accompanying Narasimhacharyulu in the conduct of the mortgage suit.
The learned Advocate for the respondents contended that it was not necessary for his clients to fix the Plaintiff with the knowledge of the assertion of the adverse claim. He relied on the Privy Council decision in - (1934) 66 MLJ 134 (Privy Council) . Lord Macmillan in delivering the judgment of the Judicial Committee stated the law clearly and succinctly in the following terms:
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 exercised due vigilance, to be aware of what is happening.
The decision was followed by Lord Thskker-ton in - AIR 1935 36 (Privy Council) . The Privy Council decision in - ''AIR 1934 PC & (B)'' was referred to and applied in a recent Full Bench decision of the Madras High Court in - ''Palania Piilai v. Ibrahim Rowther AIR 1942 Mad 822 (FB) (D). At page 624, Leach C.J., referred to the conflict of authority in the Madras High Court on the question whether it was necessary in order to support a plea of adverse possession that knowledge of adverse possession must be proved. He set out the question that was referred to the Full Bench, namely:
Where some co-owners usufructuarily mortgage specific items of property held by the members of a Muhammadan family, and the mortgagee enters into possession of the mortgaged items under his mortgage-deed, is a suit to recover the snare therein by other members of the same family barred'' by Article 144, Limitation Act, at the end of 12 years of such possession or does adverse possession begin as against the other members only from the date of ouster to their knowledge.
He answered the question in the following terms: "The weight of authority in this Court is in favour of an affirmative answer being given to the first part of the question. There are decisions of the Calcutta and Bombay High-Courts to the same effect and support for the majority view is also to be obtained from the decision of the Privy Council in - (1934) 66 MLJ 134 (Privy Council) ''.
Having regard to the recent Privy Council decisions and the latter Full Bench decision of the Madras High Court referred to ''supra'', the decision in AIR 1914 Mad 334 (2) (A)'' may ho longer be regarded as good case law. It is sufficient as pointed out by the Privy Council that possession should 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 was happening and it is not necessary that adverse possession should be brought to J the notice of the real owner. But as I have already! pointed out the Plaintiff had knowledge of the rights asserted by Narasimhacharyulu and the Defendants in regard to the property and therefore the case satisfies even the principles laid down in AIR 1914 Mad 334 (2) (A)''.
The learned Advocate for the appellant contended that on the recitals in Ex. P. 5, his right to obtain possession did not accrue till 1942. I have carefully gone through the document and I find that there is no substance in this contention. It was open to the assignee to redeem and obtain possession of the properties even prior to 1942 as his assignor could do.
In the result the second appeal fails and is dismissed with costs. No leave.