Vaithilinga Gounder vs Kuppusami Gounder

Ramakrishnan, J.—The plaintiff in O.S. No. 18 of 1957 on the file of the District Munsif, Tiruthuraipoondi, is the appellant in this second

appeal. The facts necessary for a consideration of this case are briefly the following. The suit property covers two plots of land--14 cents and 44

cents in extent. They belonged admittedly to the plaintiff. He was away from India between 1937 and 1956 and had asked his mother to look after

the properties in his absence. The mother executed two sale deeds Exs. B-1 dated 12-7-1941 and B-2 dated 4-6-1942, in her own personal,

right and conveyed the properties to defendant 5. The plaintiff filed the suit in 1957 for recovery of possession of these properties. Of course,

along with the properties, alienated to defendant 5, there were some other properties which were alienated to some other defendants; but we are

not concerned with those alienations to the other defendants in this second appeal, because the plaintiff has compromised with those defendants.

We are concerned in this appeal only with the alienations mentioned above in 1941 and 1942 by the plaintiff''s mother to defendant 5. The plaintiff

alleged that he returned to India only on 20-9-1956, and he filed the suit in 1957. The main plea of defendant 5 was one of adverse possession

and limitation.

The trial Court decreed the plaintiff''s suit after finding that the alienations were not valid and binding on the plaintiff. It held that, since the plaintiff

did not know of alienations till he returned to India in 1956 the suit was in time. Defendant 5 appealed to the District Judge, Nagapattinam in A.S.

No. 72 of 1958. The learned District Judge held that the plaintiff had failed to prove that he was in possession of the property within 12 years prior

to suit. He also found that the possession of defendant 5 from the years 1941 and 1942, when the alienations took place, for 14 years and 15

years respectively upto the date of the filing of the suit was sufficient to confer on defendant 5 title by adverse possession. The decision of the trial

court was reversed and the suit was dismissed. From this decision, the present appeal is filed by the plaintiff.

Learned counsel for the appellant, urged that it was an admitted fact that the plaintiff was in Malaya from 1937 to 1956 for a period of 19 years.

He contended that the plaintiff had no means of knowing about the alienations. He also urged that the alienee derived title from the plaintiffs mother

and the title so derived could not be considered to be adverse to the plaintiff, I am of opinion that these contentions are not tenable. The principles

for guidance in such cases have been laid down in the Privy Council decision in Radhamoni Debi v. Collector of Khulna, ILR 27 Cal 943 (PC),

and these have been followed in a later Privy Council decision in the (1934) 66 MLJ 134 (Privy Council) They are that

possession required mast be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor .... 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

exercises due vigilance, to be aware of what is happening.

There is no doubt in this case that defendant 5 claimed an independent title of his own after the alienation by the plaintiff''s mother, and he held the

property in his own fight without any reference to the plaintiff. The other question which was pressed on me is whether the plaintiff''s being abroad

in Malaya for over 19 years would make any difference in the matter of time running against him. A person cannot be permitted to urge for the

purpose of saving the bar of limitation, that either business or compulsion took him far away from the shores of India, and that therefore there was

no opportunity or means for him to know that a trespasser had occupied his property in his absence. In a decision of this court in Kuppuswami

Naidu and Others Vs. Kuppuswami Naidu and Others, , by Abdur Rahman, J. the plaintiff was sentenced to transportation for life and he was

undergoing imprisonment in Andamans for a period of about 9 years. He wanted to rely on this period as not counting for adverse possession

against him. The court held that it was entirely immaterial whether the plaintiff was voluntarily out of India or involuntarily so. The fact that he was

not actually aware of the fact that other persons were in adverse possession of the property was also irrelevant. The test, as pointed out by the

Privy Council, is whether he exercised due vigilance in regard to what was happening. Due vigilance will not cover a case where a person is, so

negligent of his own interest during his absence abroad as to leave no one to look after his properties. If other persons were so minded, they could

have informed him about the person who dispossessed him, and, if a person like his mother, in whom the plaintiff had placed implicit trust, acted

against his interest, it will not cover the requirements of the statute.

In this connection, Sri R. Gopalaswami Aiyangar who appeared for the plaintiff-appellant, referred to another Privy Council decision in AIR 1935

36 (Privy Council) That case was decided on its own facts. It applied the principle about due vigilance laid down in (1934) 66 MLJ 134 (Privy

Council) . In that case, adverse possession claimed was in regard to extracting coal from areas deep under the ground in a colliery. By such

extraction, coal seams lying under the owner''s property seem to have been mined by the trespasser and it was in that context that their Lordships

of the Privy Council observed that what was necessary to constitute adverse possession was no doubt, well settled, but that its application in the

circumstances of particular cases might present some difficulty and that such difficulty was likely to occur in a case of the alleged adverse

possession of underground mineral seams.

It seems to me that this principle cannot be extended to cases where stay overseas is alleged as a ground which deprived the plaintiff of the

necessary means of knowledge of the trespass, and the necessary means of vigilance. If this principle is accepted, we will have to include a person

who goes abroad, as a person under a disability so as to extend the period of limitation in his favour. Persons who are under disability and who can

claim that time will not run against them during such period are well recognised by law, like minors, lunatics and so on, and there is no authority for

extending such a benefit to persons who stay overseas voluntarily or involuntarily. I therefore see no grounds to allow this appeal.

The second appeal is dismissed with costs. No leave.