SREEDHARAN PILLAI Vs. HYMAVATHEESWARI AMMA

JUDGEMENT

(1.) A. S. No. 128 of 1976 is an appeal originally filed before the Sub Court, Kottarakkara, which was called to this Court for the purpose of being heard along with S. A. No, 1082 of 1972, assuming that the question for decision in the two appeals are the same. But after hearing counsel on both sides, we think that the matters for decision in these two appeals are different and the disposal of either of the appeals would have no bearing on the other. Therefore we do not propose to dispose of A. S. 128 of 1976, as in the normal course it is to be heard by the Sub Court, Kottarakkara against whose decision possibly there is a right of appeal to this Court provided the conditions for admission of such appeal under S. 100 of the Code of Civil Procedure, as amended, are satisfied.

(2.) In the second appeal plaintiffs are the appellants. There are 8 of them, the first appellant being the vendee of the rights of appellants 2 to 8 over suit properties. Certain properties belonging to one Balakrishna Pillai were claimed by the members of his tarwad as that obtained by them on bis death by reason of the fact that he died without wife or children. These properties were subject of a partition suit at the instance of some members of the tarwad, that suit being OS 24 of 1950 renumbered as O S. 140 of 1956 of the Kottarakkara Sub Court. The deceased Balakrishna Pillai, to whom all the properties so belonged, had executed a gift deed, Ext. D5, in favour of the first defendant in the present suit and the first defendant had, in turn, executed Ext. D6 settlement in favour of the 7th defendant in the suit and others. In the suit OS. 24 of 1950 the settlements were impeached and the plaintiffs therein succeeded in setting aside the gift deed in favour of the first defendant and the settlement deed executed by the first defendant. The plaintiffs in the suit OS. 24 of 1950 obtained 6/23 shares over those properties and towards such share properties were allotted to them. Plaintiffs 2 to 8 in the present suit were parties to the earlier suit OS. 24 of 1950. But they did not pay court fee for their share with the result that they did not get a decree for partition of their share in that suit. The properties left over after allotting 6/23 to the plaintiffs in OS. 24 of 1950 are the properties which are the subject matter of the present suit. Plaintiffs 2 to 8 and their vendee, the first plaintiff, claim their shares in the suit items that being 7/17 and in addition 2/5 of 1/17 that being the share out of deceased Kalliani Amma's share in these properties. The main contention which the plaintiffs in the present suit were faced with was that the donees under Ext. D5 gift deed and the subsequent donees under Ext. D6 settlement deed were holding the items gifted adversely to the real owners so much so that the present suit for partition filed more than 12 years after the commencement of adverse possession must be dismissed as barred. To counter this the case of the plaintiffs is that the earlier suit, O. S. 24 of 1950, was instituted well within time and before adverse possession had ripened into ownership and in that suit the settlement deeds having been set aside and the plaintiffs in that suit having been given a decree for recovery of possession of their shares the decision in that suit must enure to the benefit of other shares including plaintiffs 2 to 8. It is therefore said that adverse possession could commence only subsequent to that decision and if that be the case the suit instituted well within 12 years must be found to be not barred. The question then would be whether the decision in the earlier suit setting aside the settlement deeds Exts. D5 and D6 and enabling the plaintiffs in that suit to recover their share of the properties would arrest adverse possession as against plaintiffs 2 to 8 in this suit. If that be the case it must be that adverse possession must commence afresh in which event the suit being within 12 years there would be no question of adverse possession.

(3.) The question whether mere passing of a decree declaring plaintiffs' title would interrupt adverse possession was subject matter of controversy in courts once upon a time. The Privy Council in the decision in Subbaiya v. M. D. Mustafa ( AIR 1923 PC 175 ) noticed the conflict of views and that was set at rest by the said decision In that case during the pendency of a suit for declaration of title to certain properties which was the subject of a trust some item was sold in execution of a decree and the auction purchaser came into possession pursuant thereto. A suit which was pending at that time was decreed declaring that the property was trust property. The auction purchaser was on record at the time the decree was made. But no steps were taken to recover possession or to dispute the auction purchaser's possession who continued in possession for more than 12 years. When the Trust instituted a suit to recover possession it was contended by the auction purchaser that bis possession was adverse and he had perfected title by such adverse possession. In view of the declaration in the earlier suit it was contended that such plea was unsustainable. The Privy Council found that the decree for declaration had not the effect of interrupting adverse possession and in this context the Privy Council said: