P LAKSHMI REDDY Vs. L LAKSHMI REDDY

JUDGEMENT

(1.) The plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one-third share in the suit properties and for partition and recovery of that share. The suit was dismissed as having been barred by limitation and adverse possession. On appeal the District Judge reversed the decision and decreed the suit. The High Court maintained the decree of the District Judge on second appeal. Hence this appeal before us on special leave by the first defendant in the action, who is the appellant before us. The main question that arises in the appeal is whether the plaintiff has lost his right to a one-third share in the suit property by adverse possession.

(2.) The property in suit belonged to one Venkata Reddy. He died as an infant on August 25, 1927. At that time, the properties were in the possession of the maternal uncles of the father of the deceased Venkata Reddy. One Hanimi Reddy, an agnatic relation of Venkata Reddy, filed a suit O. S. No. 26 of 1927 for recovery of the properties from the said maternal uncles and obtained a decree therein on March 15, 1929. A Receiver was appointed for the properties in February, 1928, during the pendency of the suit and presumably the properties were in his possession. This appears from the decree which shows that it directed the Receiver to deliver possession to the successful plaintiff in that suit. Hanimi Reddy obtained actual possession of these properties on January 20, 1930, and continued in possession till he died on August 16,1936. The first defendant in the present action who is the appellant before us is a son of the brother of Hanimi Reddy and came into possession of all the properties as Hanimi Reddy's heir. The respondent before us is the plaintiff. The present suit was brought on the allegation that the plaintiff and the second defendant in the suit, his brother, were agnatic relations of Venkata Reddy, of the same degree as Hanimi Reddy and that all the three were equal co-heirs of Venkata Reddy and succeeded to his properties as such on his death. It was alleged that though Hanimi Reddy filed the prior suit and obtained possession of the properties thereunder, he did so as one of the co- heirs, with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants in common but that the first defendant, who came into possession on the death of Hanimi Reddy denied the title of the plaintiff and his brother in or about the year 1940. The plaint in the present action was filed originally in the District Munsif's Court on October 23, 1941, and was ordered to be returned for presentation to the District Judge's Court on November 30, 1942. It was actually represented in that Court on December 2, 1942. One of the questions raised in the suit was that the suit was barred by limitation on the ground that it must be taken to have been instituted not on October 23, 1941, but on December 2, 1942. This plea was upheld by the trial Court. On first appeal the District Judge held that the plaintiff is entitled to the benefit of S.14 of the Limitation Act and that the suit must be taken as having been instituted on October 23, 1941, and is, therefore, in time. He accordingly decreed the suit. In the High Court the question as to whether the plaintiff was entitled to the benefit of S.14 of the Limitation Act, though raised was not finally decided. It was held that the possession of Hanimi Reddy was not adverse to the plaintiff and that accordingly he was entitled to the decree as prayed for. The question as to the non-availability of the benefit of S. 14 of the Limitation Act to the plaintiff in the present suit has not been urged before us and the finding of the District Judge that the plaint must be taken to have been validly presented on October 23, 1941, stands. That date must, therefore, be taken to be the commencement of the action for the purposes of this appeal. It will be noticed that this date is more than fourteen years from the date when the succession opened to the properties of Venkata Reddy on August 25,1927, but is less than twelve years after Hanimi Reddy obtained actual possession in execution of his decree on January 20, 1930. The contention of the learned Attorney-General for the appellant-first defendant is that the possession of Hanimi Reddy was adverse, that the plaintiff as well as the second defendant lost their right by the adverse possession of Hanimi Reddy and his successor, the first defendant, and that for this purpose not only the period from January 20, 1930, up to October 23, 1941, is to be counted but also the prior period during the pendency of Hanimi Reddy's suit when the Receiver was in possession of the suit properties. It is the validity of these parts of the argument which has to be considered.

(3.) It will be convenient to consider in the first instance whether or not the possession of Hanimi Reddy from January 20, 1930, up to the date of his death in 1936 was adverse to his co-heirs. The facts relevant for this purpose are the following. At the date when Venkata Reddy died his properties were in the custody of the two maternal uncles of his father. Hanimi Reddy filed his suit on the allegation, as already stated above, that he was the nearest agnatic relation alive of the deceased minor Venkata Reddy and as his next rightful heir to succeed to all the estate, movable and immovable, of the said minor, set forth in the schedules thereto. He appended a genealogical tree to this plaint which showed his relationship to Venkata Reddy through a common ancestor and showed only the two lines of himself and Venkata Reddy. Plaintiff and the second defendant belong to another line emanating from the same common ancestor but that line was not shown and the plaintiff and the second defendant were ignored. The first defendant in the present suit did not admit the relationship of plaintiff and second defendant in his written statement. He disputed that the father of the plaintiff and the second defendant was descended from the common ancestor either by birth or by adoption, as shown in the genealogical table attached to the present plaint. It is possible that this may have been the reason for Hanimi Reddy ignoring the plaintiff and the second defendant in his suit. However this may be, at the trial in this suit it was admitted, that the plaintiff and the second defendant are the agnatic relations of Venkata Reddy of the same degree as Hanimi Reddy. The defendants in the earlier suit who were in possession on that date claimed to retain possession on behalf of an alleged illatom son-in-law, (of Venkata Reddy's father) a son of the second defendant therein. It may be mentioned that in that part of the country (Andhra) an illatom son-in-law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural-born son. This claim appears to have been negatived and the suit was decreed. During the pendency of the suit a Receiver was appointed in February, 1928. He presumably took possession though the date of his taking possession is not on the record. The decree in that suit dated March 15, 1929, is as follows.: