KONAPPA MUDALIAR Vs. KUSALARU ALIAS MUNUSWAMI PILLAI

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit relates to a house which originally belonged to one Venkatachalam. His son Balu left the house in 1932 and was thereafter not heard of. Venkatachalarn also died soon after. From the evidence in this case it appears that Balu's wife Thirupathiammal, who is the plaintiff's vendor also left the house at about the same time and went to live with her parents. On 27-4-1945, she executed a sale in plaintiff's favour. The first defendant purchased the same property from Chennammal, Venkatachala's widow on 6-12-1945. The matter came up once before to this Court, on appeal. The finding of the Courts below that the plaintiff had title to the property was confirmed. It was remanded to the lower appellate Court for a finding whether the plaintiff was in possession within 12 years of suit. After remand, the' learned District Judge, Salem, has, after an exhaustive discussions of the evidence on record, came to the conclusion that the plaintiff was not in possession within 12 years of suit. This finding being one of fact has got to stand. In any case, it is simply supported by the evidence on record.

(2.) BUT the point urged on behalf of the appellant is that the question whether the plaintiff who has title and who sues for possession of the property to which he is entitled should, in order to succeed in his suit, also show possession within 12 years of suit no longer arises, in view of the provisions of the Articles 64 and 65 of the Limitation Act, 1963 and as the Supreme Court has in its decision in Nair service Society v. K. C. Alexander, held that the present Articles 64 and 65 are merely declaratory, the matter must be decided on the basis of" the present Arts. 64 and 65 rather than under Art 142 as was directed by this Court in its ' order of remand. On the other hand, it is urged on behalf of the respondents, that the Court below had no jurisdiction to consider any question other than the one it was directed to consider by the order of remand of this Court and that it was not open to the lower appellate Court to consider whether the matter fell within Arts. 64 and 65 of the present Limitation Act. In respect of suits filed before the Limitation Act, 1963 came into force, the provisions of that Act have to be given effect to where fresh steps like appeal etc. , have to be taken and not the provisions of the Limitation Act, 1908, subject, of course, to the provisions of section 30 of the 1963 Act. The provision of Section 30 applies, however, only to suits for which the period of limitation under 1963 Act is shorter than the period prescribed under the 1908 Act. Therefore, Section 30 of the 1963 Act does not apply to this case. When this suit was filed Article 142 applied. The effect of the Article 142 of 1908 Act as interpreted by a Full Bench of this court is that even where a person with a title files a suit for possession, but fails to show possession within 12 years of suit, he has got to fail, even though the person in possession might not have completed his title by adverse possession. It is this defect that has been cured by the 1963 Act. Articles 64 and 65 have been interpreted by the Supreme Court as declaratory and not remedial. The effect, therefore, of the decision of the Supreme Court is that it should always be deemed to have been the law that when a person who has title sues for possession, need not be in possession within 12 years of suit and he is entitled to succeed unless the defendant is able to establish that he has prescribed title by adverse possession. Now in this case, the first defendant's possession is only from the date of sale, 2712-1945, and it is less than 12 years. Of course, he can add the possession of his vendor, to his own possession, provided his vendor's possession was adverse to the plaintiff's vendor. From what we have already stated, it would be obvious that the plaintiff's vendor had never been in possession though she had title. Can it then be said that the first defendant's vendor's possession was adverse to the plaintiff's vendor and, therefore, to the plaintiff? The plaintiff's vendor having left the house as early as 1932 and come down to the village in 1945 merely for the purpose of executing the sale deed, it is not unreasonable to think that the first defendant's vendor was in possession in assertion of title of hers. Even according to the plaintiff's witnesses, the first defendant's vendor drove away, the plaintiff's vendor within two months of the execution of the sale deed by her in favour of the plaintiff and then executed the sale deed in favour of the first defendant. The first defendant's vendor, in view of the fact that her son had left even before her husband's death and the plaintiff's vendor had left the village soon after, should have been in possession in her own right. This was not a case of possession among two co-owners where it could be said that the possession of one co-owner cannot be adverse to the other co-owner, unless the former's possession is openly hostile to the knowledge of the other co-owner. It was a case of a person, who had no title to be in possession, being in possession and therefore, the defendant's vendor's possession must be adverse to the plaintiff's right from the date of her own possession. Therefore, even applying the provisions of the Limitation Act of 1963, the defendants should be deemed to have prescribed title by adverse possession.

(3.) THE question whether it was open to the lower appellate Court to apply the provisions of the Limitation Act of 1963 notwithstanding the order of remand directing it to consider the question from the point of view of Article 142 of the limitation Act 1908 presents no difficulty whatsoever. It was not open to the lower appellate Court to do anything, but to carry out the terms of the order of remand, which it has done. Even if it considered that the order of remand made by this court on the earlier occasion Was not in accordance with law, it was not open to that Court to apply what it might consider to be the correct provision of law. The decision of the Supreme Court on which reliance is placed for the appellant was rendered on 12-12-1968. This appeal was disposed of by the lower appellate Court after remand on 26-6-1964. On that date, the only decision that was binding on the lower appellate Court was the decision of the Full Bench of this Court. Therefore, the decision of the lower appellate Court was correct on the facts of the case.