SINGARAVELU MUDALIAR Vs. CHOKKA MUDALIAR (ALIAS) CHOKKALINGA MUDALIAR

JUDGEMENT

(1.) I agree with the judgment which my learned brother is about to deliver. The question whether possession in any particular case is adverse is a question of fact. A judgment in a prior suit may operate as res judicata in a subsequent suit between the same parties or their representatives in interest if it decides what was the character of the possession of any person who was a party to that suit, e.g., whether it was then adverse or permissive possession or whether it was separate or joint possession. But I am, with due respect, quite unable to understand how the judgment of a court declaring that one of the parties has no legal title to the properties in suit, can have the effect of causing his possession to cease to be adverse to the opposite party from the moment of its pronouncement, so long as possession remains undisturbed. Such a judgment would rather appear to emphasise the adverseness of the possession of the trespasser as against the true owner. It cannot benefit the true owner who omits for some reason or other to take steps to eject the trespasser before the latter completes the period of possession required for the establishment of a prescriptive title. The judgment relied upon in this case, O.S. No. 151 of 1912, was a judgment in a suit brought by the present defendant. It decided a question of title without declaring the character of his possession. As in the result the suit was dismissed, the present plaintiff could not make use of it for ejecting the present defendant in. execution of that decree. He waited too long to institute the suit with the consequence that when he came to a Court as a plaintiff he found himself barred by the Statute of Limitations. We must follow the decisions of this Court in preference to that in Mir Akbar Ali V/s. Abdul Ajij (1920) I.L.R. 44 Bom. 934. The article governing limitation in this suit was rightly taken to be Art. 124 - Vide Pattaikawa Manakkal Kuppan V/s. Choorakkapatti Munde Kottil (1912) 14 I.C. 168.

(2.) The appeal is allowed with costs of appellant here and in the lower appellate court to be paid by plaintiff, and the decree of the District Munsif dismissing the suit with costs will be restored. Venkatasubba Rao, J.

(3.) The dispute relates to a charity known as Abiraman Thiruvasai Choultry. The plaintiff (respondent before us) brought the suit for recovery of possession of a choultry building belonging to the said charity alleging that he was the trustee thereof. The 1 defendant resisted the suit on the ground that the plaintiff was not the trustee and the right, if any, which the plaintiff possessed to the trusteeship became barred by limitation. The first issue framed is : "Whether the plaintiff is the trustee of the suit charity?" and the 2nd, "Whether the plaintiff's claim to the trusteeship is time-barred?".