(1.) THIS is a plaintiff's appeal from the decree dismissing his suit. He sued for declaration of title over the property described in the plaint schedule, for setting aside a revenue sale and for an injunction to restrain the 2nd defendant from obtaining possession of the property on the strength of revenue sale. His case was that though the property was unregistered Government land, one Kali Raman was in possession of the same for over forty years. The land was registered in the name of one Villi Kochappi in the year 1100 but it was alleged that he also did not get possession and that kali Raman continued to be in possession. The property was sold in revenue sale on 21. 6. 1114 and was purchased by one Pathrose Samuel who transferred his rights to be the 2nd defendant. The validity of the revenue sale was questioned on the ground that it was vitiated by material irregularities, illegality and fraud. An alternative prayer was also made that in case the main reliefs could not be granted the plaintiff should be awarded a sum of Rs. 500 as compensation for improvements on the property. The 1st defendant the State of Travancore-Cochin and the 2nd defendant the vendee from the auction purchaser filed written statements denying the plaintiff's title and contending that the sale was valid. The trial court found that the plaintiff and his predecessor had not obtained title by prescription and dismissed the suit subject to the direction that the plaintiff could remove the building standing on the property within two months of the date of the decree. The plaintiff has preferred the appeal from this decree.
(2.) IT was not contended on behalf of the appellant that kali Raman had acquired title against the State by prescription. Kali Raman was examined as P. W. 2 and as observed by the trial court the duration of his possession was only 13 years prior to the year 1117. This conclusion was reached on the basis of some of his admissions as P. W. 2. The point urged by the learned counsel for the appellant was that notwithstanding the registry of the property to Villi Kochappi and the first revenue sale held in the year 1111, Kali Raman continued in peaceful and uninterrupted possession and that he thus prescribed against the registry holder and the subsequent auction purchasers. The decision of this question depends on what is sold in a revenue sale for recovery of arrears of assessment due on the property and the effect of S. 39 of the Travancore Revenue Recovery Act, I of 1068. IT was held by the privy Council in Suraj Kanta Achariya v. Sarat Chandra Rowy Chowdhuri (A. I. R. 1914 P. C. 82) that what was sold on the failure of the owner to pay the government assessment was not the interest of the defaulting owner but the interest of the Crown subject to the payment of Government assessment and that the time limited by the Limitation Act commenced to run only from the date of the sale. This decision was followed by the Calcutta High Court in Secretary of state for India v. Wazed Ali Khan Pani and others (A. I. R. 1921 Cal. 687 ). Inasmuch as Kali raman had not acquired title by prescription on the date of the registry or the revenue sale, adverse possession could not be said to have commenced before the date of the revenue sale. S. 39 of the Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue due thereon shall be sold free of all encumbrances. S. 70 of the Assam Land and Revenue Regulation (I of 1886) contained a similar provision regarding sales for recovery of arrears of land revenue and it was held in Musuzah Bibi v. Brojendra (20 Cal. L. J. 210) that adverse possession has to be held to be an encumbrance contemplated under S. 70. Earlier decisions of the Calcutta High Court upholding this view were followed. As this suit was instituted before the expiry of 12 years from the date of the revenue sale we hold that the plaintiff has not acquired title by adverse possession. The plaintiff is not therefore entitled to the declaration and injunction asked for.