Paluru Ademma vs Achala Penchelu Reddi

Chandrasekhara Aiyar, J.—The dispute in this second appeal preferred by the plaintiff relates to a ridge marked blue in the Commissioner''s

plan, Ex. D-1. It would be seen that it is situated between Section No. 236/1, which belongs to the plaintiff and Section No. 235/3 which belongs

to the defendant. The learned Subordinate Judge has rightly found, on the basis of the evidence in the case supported by the Commissioner''s

reports and plans, that it is outside both the survey numbers. The plaintiff alleged that the ridge belonged in common to her and the defendant and

she asked for a mandatory injunction that it should be restored to its original condition inasmuch as the same had been interfered with by the

defendant by reducing its width as well as height. She pleaded that the ridge was being enjoyed in common between the two neighbouring owners

for quite a long time. The District Munsif held that the plaintiff and the defendant were joint owners of the suit ridge and that the defendant

interfered with it by reducing its height and breadth So he granted to the plaintiff a mandatory injunction. On appeal by the defendant, the learned

Subordinate Judge of Nellore came to the conclusion that the ridge did not form part of Survey No. 236/1, which the plaintiff purchased in court

auction in execution of the decree in O.S. No. 1322 of 1932 and that she could not, therefore, lay claim to a joint light in the ridge with the

defendant. Dealing with the question of the acquisition of a right by adverse possession, he held that though the judgment-debtor in O.S. No. 1322

of 1932 was in possession previously and the plaintiff was in possession subsequent to the purchase, still no title could be made out on the basis of

adverse possession, as it was a case of independent trespassers, the plaintiff nm claiming title to the ridge by reason of the purchase of Section No.

236/1. In para. 6 he says that he was prepared to accept the District Munsif''s finding that the plaintiff and her predecessors were enjoying the

ridge and the grass grown thereon jointly with the defendant and his predecessors; but states that as the plaintiff''s purchase was only 9 years back,

she could not get any title by adverse possession as her enjoyment fell short of the period of 12 years required by law. According to him, she could

be considered only as a person claiming as an independent trespasser and her adverse possession could not be tacked on to the adverse

possession of her judgment-debtor. We have to see whether this conclusion is correct.

Whatever might have been said in Willis v. Earl Howe (1893) 2 Ch. 545, which was the decision referred to and followed in Ramayya v.

Kotamma AIR 1922 Mad. 59 cited for the appellant, the law is clearly settled now, after the decision of the Privy Council in 1893 A. c. 5563 that

the possession of independent trespassers cannot be tacked on for acquiring a title by adverse possession. Whether any distinction should be made

in this proposition as between a case falling under Article 142 and a case falling under Article 144 is a question that does not concern us now,

though it must be said that it is somewhat difficult to see how even with reference to a suit to which Article 142, Limitation Act, applies, the

possession pleaded by the defendant could be regarded as continuous, if the persons who were in possession did not claim title under or through

one another. The principle in Solling v. Broughton 1893 A.C. 556 is shortly stated in (1934) 66 MLJ 134 (Privy Council) in these words:

It is true that the periods of possession of a series of independent trespassers cannot be added together and utilised by the last possessor to make

up the statutory total period of adverse possession: Dixon v. Gayfare (1853) 17 Beav. 421.

The possession must, therefore, be continuous. In fact it must be connected as of right, or under some privity of title. The man who pleads

adverse possession must claim under or through his predecessor or predecessors. It is only when these features exsit or co-exist that the adverse

possession of several people against the true owner could be tacked on. Now, what are the facts before us? The plaint alleges in para. 4, after

referring to Section No. 236/1 and Section No. 235/3 that both the parties and their predecessors-in title have been enjoying in equal halves the

ancient ridge lying between the two properties, of a width of 8 links and a height of 21/2 feet, and that they were taking the grass, etc., on the ridge

in the same manner. This allegation is quite consistent with the case that the ridge formed an appurtenance to Section No. 236/1. I am not able to

see why the learned Subordinate Judge states in para. 5 of his judgment that the plaintiff has not claimed in the plaint any right to this ridge on this

basis. She claimed the half right in the ridge jointly with the defendant undoubtedly, but she did not say in the plaint that she got this half right

because it was a ridge that demarcated the two properties, the owners of the adjoining survey numbers being each entitled to a half share. This was

one of the contentions put forward at the time of the trial and, as pointed out by the learned Subordinate Judge, was discussed, by the learned

District Munsif in para. 17 of his judgment from which it appears that more than one case seem to have been advanced; for instance, that a

demarcating ridge, lying between two fields owned by different owners should be deemed to lie on either side of the exact dividing line of

ownership and should, therefore, be presumed to be owned jointly. Another case was, apart from any such presumption, the evidence was

sufficient to hold that the plaintiff had acquired a joint right by possession. The view taken by the lower Court that because this ridge did not form

part of the. purchase by the plaintiff in court auction, as it falls outside Section No. 236/1 which alone was bought by her, fails to take into account

the probability, that as the previous owner, viz., the judgment-debtor in that suit, was enjoying this ridge by reason of the ownership of S. No.

237/1, any right that was acquired under the court auction-purchase must be deemed to have included the right to this ridge also as an

appurtenance to this property. What the law requires, as stated already, is that there should be some privity between the persons in possession,

i.e., the trespasser who claims adverse possession must not have gone into possession in defiance of the possession of the predecessor. This is

pointed, out in the decision reported in Ma. Mi. v. Hadji Mahomed AIR 1923 Rang. 261 where we find this passage:

The oases quoted in the lower Courts to the effect that one trespasser cannot tack the period occupied by the possession of another trespasser

does not touch the real question in this case. The trespassers in such cases would be independent trespassers and not the so-called trespassers

claiming to have purchased* the one from the other. In other words, each of the independent trespassers referred to in such cases would have

entered in defiance of the rights of all previous trespassers.

In Wood on Limitation (4th Edn., vol. 2, p., 1311) where the question of tacking is discussed at great length and with a wealth of citation of

American decisions it is laid down:

In order to create the privity requisite to enable a subsequent occupant to tack to his possession that of a prior occupant, it is not necessary that

there should be a conveyance in writing. It is sufficient if it is shown that the prior occupant transferred his possession to him, even though by parol.

Cases are cited at p. 1312 as authorities for the position that it is enough if we have a continuous and uninterrupted possession for the requisite

period, whether by one or more persons, where such was the understanding of the parties. In Rustoirlji on Limitation, Baijnath and Another Vs.

Ram Bilas and Others, is quoted as authority for the position that all that is necessary to privity between successive occupants of property i3 that

one receives his possession from the other or by act of such other, or by operation of law. The plaintiff in the present case did not commence his

enjoyment of the ridge in a manner hostile to or derogatory of the rights of the judgment-debtor in the suit in execution of which Section No. 236/1

was purchased; on the other hand, the possession was because his judgment-debtor was in enjoyment of this ridge, which lay adjacent to that

survey number. It may be said that the plaintiff got the right under the purchase, or at least, by reason of the purchase, though it is perfectly true that

this ridge was not part of Section No. 236/1. The position is really as if the judgment-debtor told the plaintiff: ""You may enjoy the ridge as owner

of Section No. 236/1 as I have been doing heretofore."" The possession and enjoyment of the ridge accompanied the ownership of the field. I fail

to understand why, in a case like this, where the possession is traced to the possession of the previous trespasser and is not antagonistic, we

should not postulate the necessary privity, which will enable the two periods of possession to be tacked. Privity of estate or contract is a somewhat

flexible term and must be given a rather comprehensive meaning when justice has to be done. Here is a ridge that, according to both the Courts,

has been used and enjoyed by the owners on both sides of it for quite a long number of years and now the plaintiff, who purchased the eastern

survey number and has been using the ridge for nine years, is ""to be told that she must allow her right to be interfered with and destroyed, because

of the technical rule that independent trespassers should not be allowed to tack on possession. Law should not render itself so helpless. I differ

from the conclusion of the Subordinate Judge, and holding that the plaintiff has established her right to enjoyment to a half share in this ridge by

adverse possession, set aside the decree of the lower Court and restore that of the Munsif with costs right through. No leave.