JOSHYULA SATYANARAYANA SIDHANTI Vs. BERHAMPORE MUNICIPAL COUNCIL

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decision of the learned Subordinate Judge of Puri at Berhampore, dated 27 September 1937, reversing a decision of the Munsif of Berhampore, dated 2 November, 1936. The appellant had brought a suit for a declaration of his title to certain property upon which he claimed that he had a granary, which had existed there from before 1885 in the time of his father On 22 November, 1933, the defendant, the Berhampore Municipal Council, served a notice on the appellant under Secs.182 and 183, Madras District Municipalities Act, to remove the granary, or in the alternative to pay license fees at the rate of Rs. 3 per annum for the years 1931 to 1933 on the allegation that the land upon which the granary stood was part of the roadway. The appellant paid the license fees under protest, and then filed the suit out of which this appeal arises for declaration of his title and recovery of the sums realized from him. The defence of the municipality was that in the year 1912 the town was surveyed by a special Revenue Officer appointed by the Government under the Madras Survey and Boundaries Act (Act 4 of 1897) and that officer demarcated the suit land as portion of the public street. Notices were issued under Secs.11 and 12 of that Act to the plaintiff's father and notifications published in the Gazette, and under Section 13 of the Act the decision of the Revenue Officer had become final and conclusive. It was further pleaded that the Secretary of State was a necessary party.

(2.) The learned Munsif decreed the suit, holding that the appellant had acquired title by adverse possession for more than 30 years under Art. 146A, Limitation Act. The learned Subordinate Judge however took the view that the boundary demarcation in 1912 operated as a break in the appellant's adverse possession, and as the appellant had not been in adverse possession for 30 years since 1912, he had acquired no title. Both the Courts below held that Government was not a necessary party, as the question of title could be decided as between the appellant and the municipality. The learned Judge in arriving at his view noticed a ruling of the Madras High Court Azhagaperumal Pillai V/s. Rasa Pillai ( 32) 19 A.I.R. 1932 Mad. 310 which took a contrary view, but he observed that this ruling had been dissented from in the later ruling Ramamurti V/s. Narayana Gajapati Raju ( 33) 20 A.I.R. 1933 Mad. 279 and he added that it had been well settled that the adverse possession of the plaintiff would be interrupted by the final decision of the Survey Officer under Secs.11 and 12 of Act 4 of 1897 by another decision of the Madras High Court, namely Seetharam Raju V/s. Narayanaraju ( 34) 21 A.I.R. 1934 Mad. 685.

(3.) Upon this point of law the decision of the learned Subordinate Judge was undoubtedly wrong. The ruling in Seetharam Raju V/s. Narayanaraju ( 34) 21 A.I.R. 1934 Mad. 685 was merely that of a Judge sitting singly, and could not overrule the view of a Division Bench as expressed in Azhagaperumal Pillai V/s. Rasa Pillai ( 32) 19 A.I.R. 1932 Mad. 310. The learned Subordinate Judge says that Azhagaperumal Pillai V/s. Rasa Pillai ( 32) 19 A.I.R. 1932 Mad. 310 has been dissented from in Ramamurti V/s. Narayana Gajapati Raju ( 33) 20 A.I.R. 1933 Mad. 279. The question has, however, recently been finally set at rest by a Pull Bench decision of the Madras High Court in Sivaprasad Sowcar V/s. Narasimhamurti ( 40) 27 A.I.R. 1940 Mad. 187. It was held by the Full Bench that an order of the Survey Officer under Section 11, or of the appellate authority under Section 12 of Act 4 of 1897, in itself has not the effect of causing a break in the continuity of the adverse possession held by the unsuccessful party so as to preclude his making use of the period of his prior possession to make up the period of 12 years required by the Limitation Act to complete his title. In this Full Bench decision, a ruling relied upon by the respondent, namely Muthirulandi Poosari V/s. Seethuram Aiyar ( 19) 6 A.I.R. 1919 Mad. 779, has been considered and distinguished, and moreover, the Full Bench cites with approval, the dictum laid down in Azhagaperumal Pillai V/s. Rasa Pillai ( 32) 19 A.I.R. 1932 Mad. 310. Leach, C.J. says: In my opinion the correct view of the scope of the Act was taken by Reilly and Anantakrishna Ayyar, JJ. in Azhagaperumal Pillai Vs. Rasa Pillai ( 32) 19 A.I.R. 1932 Mad. 310. There it was said that the decision of a survey officer for the planting of stones for the demarcation of the boundary does not ipso facto dispossess any party, nor make any legal break in existing possession so as to render ineffective for purposes of limitation any adverse possession running at the date of the decision. In that case it was argued that the judgment in Muthirulandi Poosari V/s. Seethuram Aiyar ( 19) 6 A.I.R. 1919 Mad. 779 ran contrary, but this argument was rejected by the learned Judges and the opinion of Ramesam, J. in Kuppuswami V/s. Venkataswami ( 23) 10 A.I.R. 1923 Mad. 29 was accepted as supporting their decision.