RAMAYYA Vs. KOTAMMA AND SIX ORS

JUDGEMENT

(1.) This Appeal arises out of a suit filed by the plaintiff as purchaser from the reversionary heirs of one Mallabattudu to recover possession of the properties specified in the plaint and the question is whether the suit is barred by limitation.

(2.) Mallabattudu, the last male holder of the properties, died in 1889, leaving two daughters, Ramamma and Govindamma. Ramamma died in 1914 and Govindamma, who is the fifth defendant, surrendered her estate to her sons who are the sixth and seventh defendants. They sold their rights to the plaintiff in this suit. The findings are that Mallabattudu, about two years before his death, made an oral gift of the suit properties to his grandson, Punnayya, the son of his daughter Ramamma, that the properties were managed by Subbarayadu, the elder brother of Punnayya as Punnayya was a minor, that Punnayya died in 1894 during minority, that the properties were thereafter enjoyed by Punnayya's brothers, Subbarayadu and two others, that Subbarayadu was the last surviving member of Punnayya's family and that on Subbarayadu's death the properties were sold by Subbarayadu's daughters to the third defendant. It is argued for the appellant that as the gift to Punnayya was oral it was invalid, that consequently Punnayya was in possession as trespasser, that on Punnayya's death his heir would be his mother, that, as Subbarayadu continued in possession, Subbarayadu's possession was also that of a trespasser, that, as neither Subbarayadu nor Punnayya completed adverse possession of twelve years, they could not tack on the possession of one to the other and that the plaintiff claiming through the nearest reversioner is not barred. The contention for the respondents is that there was no break in the possession so as to revest the properties in the rightful owner, that Punnayya and Subbarayadu cannot be treated as successive trespassers and that, in any event, the real owner having been out of possession for over twelve years the suit is barred by limitation.

(3.) It is clear in the present case that as Mallabattudu himself gave up possession, the case would not fall under Art. 141 of the Limitation Act as that article applies to cases where the last full owner was in possession at the time of his death. As pointed out by Mookerjee, J., in Mohendra Nath V/s. Shamsunnessa (1914) 21 C.L.J. 157, 164 time begins to run against the last full owner if ho himself was dispossessed and the operation of the Law of Limitation would not be arrested by the fact that on his death he was succeeded by his widow, daughter or mother, as the cause of action cannot be prolonged by the mere transfer of title. We are of opinion that Art. 142 of the Limitation Act applies to the facts of the present case. It is clear from the findings that Mallabattudu, when he made a gift of the properties to his grandson and transferred the patta in his name, discontinued his possession. Discontinuance of possession has been explained by Fry, J., in Rains V/s. Buxton (1880) 14 Ch. D. 537 as taking place where the person in possession goes out and is followed into possession by another person. In all cases where the person who was in possession at one time and discontinued possession or was dispossessed seeks to eject a person in possession he has to show that he was in possession within 12 years before the suit. We need only refer to Secretary of State for India V/s. Krishna Moni Gupta (1902) I.L.R. 29 Calc. 518. We do not think that on the facts of the present case it can be said that there have been independent trespasses by successive persons so as to give the plaintiff twelve years against each successive trespasser. Mr. Narayanamurti has referred us to Agency Co. V/s. Short (1888) 13 App. Cas. 793 as authority for the proposition that in cases of successive trespassers the limitation ceases to run against the lawful owner of land after an intruder has relinquished his possession. Lord Macnaghten after dealing with the contention that, if the statute once commenced to run, it would not stop except by the owner going into possession and so getting, as it were, a new departure, observes: Their Lordships are unable to concur in this view. They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, ineffectual for the purpose of transferring title; ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordships opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute continues to run because there is a person in possession in whoso favour it is running.