DEVAKI AMMA MOOKAMBI AMMA Vs. MEENAKSHY AMMA VIJAYAMA

JUDGEMENT

(1.) DOES a divided member of a family obtaining possession of property in excess of his share, under an award of an Arbitrator, prescribe title by adverse possession in respect of that excess share, by being in possession for over twelve years from the date of the award or does the time run only from the date when the award was made a rule of Court? This, in short, is the simple question that arises for determination in this Second Appeal.

(2.) THE first defendant in a suit for declaration of title and for recovery of possession is the appellant. THE facts are admitted and the question of law alone remains for consideration. THE plaintiff and the first defendant are members of the same family. In 1954, the family members entered into an agreement to refer to the arbitrators the division of the family properties. THE Arbitrators passed an award in 1956, Ext.A1 dt. 25-5-1956. Pursuant to the award, the parties were given possession of their share of properties by the arbitrators and in the process, the 1st defendant obtained some lands in excess of her share. That was in 1956. Sy. No. 324/1, the red marked portion in Ext. C1 plan allotted to the plaintiff was handed over to the 1st defendant. She has been in the possession of this excess property from 1956 onwards. THE award was filed in Court and a decree in terms of the award was passed on 30-7-1962 (Ext. A2). In 1969, notices were issued to the plaintiff's mother and her brother by the Revenue Divisional Officer informing them that the Government would take over possession if the land was kept uncultivated. THE plaintiff's mother informed the officer that the properties had not been demarcated and unless it was done, it was difficult for her to carry on cultivation. THE Tehsildar, thereafter, measured the property and fixed the boundary. THE plaintiff's case is that while the measurement was being taken, defendants 1 and 2 with the help of the husband of the 1st defendant, put up a bund, obstructed the plaintiff in cultivating the land and therefore the plaintiff was compelled to file a suit under S.6 (now S.9) of the Specific Relief Act for possession. That suit was dismissed on 23-10-1971, but without any decision on title. THEreafter, the present suit was filed for recovery of possession on the strength of title on 20-12-1971.

(3.) THE counsel for the appellant laid stress on the principle that possession under a mistaken impression that the land belonged to the claimant himself can give rise to a claim for adverse possession and relied on the following passage in Wood, Limitation of Actions, Vol. 2, Page 1276:-