PALURU ADEMMA Vs. ACHALA PENCHELU REDDI

JUDGEMENT

(1.) THE dispute in this second appeal preferred by the plaintiff relates to a ridge marked blue in the Commissioner's plan, Ex. D -1. It would be seen that it is situated between Section No. 236/1, which belongs to the plaintiff and Section No. 235/3 which belongs to the defendant. The learned Subordinate Judge has rightly found, on the basis of the evidence in the case supported by the Commissioner's reports and plans, that it is outside both the survey numbers. The plaintiff alleged that the ridge belonged in common to her and the defendant and she asked for a mandatory injunction that it should be restored to its original condition inasmuch as the same had been interfered with by the defendant by reducing its width as well as height. She pleaded that the ridge was being enjoyed in common between the two neighbouring owners for quite a long time. The District Munsif held that the plaintiff and the defendant were joint owners of the suit ridge and that the defendant interfered with it by reducing its height and breadth So he granted to the plaintiff a mandatory injunction. On appeal by the defendant, the learned Subordinate Judge of Nellore came to the conclusion that the ridge did not form part of Survey No. 236/1, which the plaintiff purchased in court auction in execution of the decree in O.S. No. 1322 of 1932 and that she could not, therefore, lay claim to a joint light in the ridge with the defendant. Dealing with the question of the acquisition of a right by adverse possession, he held that though the judgment -debtor in O.S. No. 1322 of 1932 was in possession previously and the plaintiff was in possession subsequent to the purchase, still no title could be made out on the basis of adverse possession, as it was a case of independent trespassers, the plaintiff nm claiming title to the ridge by reason of the purchase of Section No. 236/1. In para. 6 he says that he was prepared to accept the District Munsif's finding that the plaintiff and her predecessors were enjoying the ridge and the grass grown thereon jointly with the defendant and his predecessors; but states that as the plaintiff's purchase was only 9 years back, she could not get any title by adverse possession as her enjoyment fell short of the period of 12 years required by law. According to him, she could be considered only as a person claiming as an independent trespasser and her adverse possession could not be tacked on to the adverse possession of her judgment -debtor. We have to see whether this conclusion is correct.

(2.) WHATEVER might have been said in Willis v. Earl Howe, (1893) 2 Ch. 545, which was the decision referred to and followed in Ramayya v. Kotamma , A.I.R. 1922 Mad. 59 cited for the appellant, the law is clearly settled now, after the decision of the Privy Council in 1893 A. c. 5563 that the possession of independent trespassers cannot be tacked on for acquiring a title by adverse possession. Whether any distinction should be made in this proposition as between a case falling under Article 142 and a case falling under Article 144 is a question that does not concern us now, though it must be said that it is somewhat difficult to see how even with reference to a suit to which Article 142, Limitation Act, applies, the possession pleaded by the defendant could be regarded as continuous, if the persons who were in possession did not claim title under or through one another. The principle in Solling v. Broughton, 1893 A.C. 556 is shortly stated in Secretary of State v. in these words:

(3.) IN Wood on Limitation (4th Edn., vol. 2, p., 1311) where the question of tacking is discussed at great length and with a wealth of citation of American decisions it is laid down: