CHINNAYASAMI KOOLAPPA NAIK Vs. KUPPAYASAMI KOOLAPPA NAIK

JUDGEMENT

(1.) The question in this appeal is whether the suit is barred by limtation. Vijayagopal, the last undisputed male holder of the impartible Zamindari of Sandayur, died in 1822 leaving no sons but only two widows and a daughter. His rightful successor in the enjoyment of the Zamindari was Kuppayasami Koolappa and in 1824 he brought a suit against the two widows Ettakkammal and Krishnammal, but without success, and so the Zamindari remained in the possession of the widows and the survivor of them till the death of Ettakkammal in 1870. The plaintiff is the great grandson of Kuppayasami and in 1891 claims in virtue of the same right as was asserted by him in 1824. His suit having been dismissed, it is now contended in appeal that the suit is not barred by limitation and that, although otherwise it would so be barred, the circumstances under which the defendants came into possession give the plaintiff a right of action against them. This latter point may be disposed of first. It is said that the defendant who belongs to the same branch of the family with the plaintiff, being his father's younger brother, recovered the Zamindari after the death of Vijayagopal's daughter in 1882 as a member of the undivided family and for the family. Having recovered it on this footing he is bound, it is contended, to deliver it up to the plaintiff who as the son of an elder brother of the defendant has the preferential claim. It is true that if the Zamindari had descended in the ordinary course and had not been usurped by the widows of Vijayagopal the plaintiff is the member of the family who would be entitled to hold it. But assuming that the law of limitation does not allow the plaintiff to put forward this claim on its own merits, his Vakil relies on the alleged conduct of the defendant. The claim does not appear to have been put on this footing in the plaint and there is in fact no foundation for it. The defendant's claim to the Zamindari was based on the fact of his being the nearest sapinda entitled after the death of Ettakkammal's step-daughter and there is no evidence to show that he assumed possession as trustee for the family or otherwise than on his title of heir, (see Exh. VI, p. 43, Exh.X, p. 49).

(2.) Apart from this contention, it is argued that the suit is not barred by limitation, because in 1870, when Ettakkammal died, the right of the other branch was not barred and since that date the Zamindari has not been held adversely by any one person or by persons claiming in succession to each other, for more than twelve years. The fact is that since Ettakkammal's death the Zamindari has been in the enjoyment, first, of her step-daughter till 1882, and subsequently of the defendant. The respondent's Vakil relies on the case of Vijayasami v. Periasami,, I. L. R 7 M 242 and contends that the suit is barred by limitation, time having begun to run in 1822 and nothing having since occurred to revive the plaintiff's right of suit. In the case cited the Zamindar Grouri Vallabha Tevar died in 1829 and thereupon according to the plaintiff's case his father ought to have succeeded. The latter's claim was however ignored, there was litigation between other claimants in which Kathama Nachiar, a daughter of the late Zamindar was victorious; she was in possession till her death in 1877 and since that, date the defendant the son of her elder sister. It was held that the suit brought against him in 1881 was barred by limitation because time began to run in 1829 and continued to run without interruption as against the descendants of the Zamindar by his alleged wife the plaintiff's mother. An attempt is made to distinguish this case from the present by pointing out that, whereas Kathama Nachiar died in 1877 after the Limitation Act of 1871 came into force, Ettakkammal died in 1870 before the legislature had laid down in express terms the rule which is contained in Section 29 of the Act of 1871. The judgment in the reported case does not however rest on this circumstance and does not refer to Section 29 or the principle embodied in it. Nor do we understand how the supposed alteration of the law in 1871 could affect the rights of the parties either in this case or in the reported case. The difficulty of the plaintiffs position is to explain how, when time once began to run against his lineal ancestors and their right of suit had become barred, it can be said that time has ceased to run or the right of suit been revived. No question of the plaintiff's right to be restored to his original title arises, because he has not succeeded in recovering possession. It is hardly necessary therefore for us to express an opinion with regard to the view held in Bengal with reference to the question whether under the Act of 1859 the right was extinguished by an adverse possession exceeding twelve years (see Gossain Dass Chunder v. Issur Chunder Nath,, I.L.R 3 C 224 Gunga Gobind Mundul v. The Collector of the Twenty-four Pergunnahs,, 11 M. I. A 345 and cases cited in Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande,, I. L. R 9 B 228 In our opinion, the case cannot be distinguished from Vijayasami v. Periasami,, I. L. R 7 M 242 The plaintiff's claim cannot like the defendant's title be reconciled with the lawfulness of Ettakkammal's possession. Her holding of the Zamindari was adverse to the plaintiffs ancestor and from the date of its commencement when his cause of action arose time began to run and it has continued to run without intermission. The appeal is dismissed with costs.