NOMULA NARASIMHA Vs. VASAM MANGAMMA

JUDGEMENT

(1.) I regret to have to reverse the judgment of the Subordinate Judge and dismiss the suit of this unfortunate plaintiff, but I am afraid on the materials no other course is possible. Venkatesam was the foster son of Venkatamma and they settled by Ex. C on Mangamma the plaintiff, the house in question. This was oh the 12 of July 1890. The deed was executed just on the eve of the marriage of Venkatesam with the plaintiff and there is no dispute that the plaintiff practically never resided with her husband in the plaint house. It is clear beyond any possibility of doubt that at any rate since 1890 the plaintiff has not been living in this house. The present suit was instituted in 1920. It is necessary to set forth in some detail the history of the relations between Venkatamma and Venkatesam on the one hand and the plaintiff on the other. Owing to misunderstandings, the plaintiff did not go to live with her husband and on the 24 of July 1901 the mother and the son executed what is described as a cancellation deed revoking the settlement in the plaintiff's favour. This was followed a few months later by what is termed a relinquishment deed by which Venkatesam gave up his rights in the (sic) to Venkatamma. The next step was (sic) Venkatamma filed Suit No. 522 of 1901 (sic) declaration that the plaintiff had (sic) her rights to the suit property. At (sic) Venkatamma was in possession (sic) only relief she sought to obtain was (sic) as to her rights to the property. (sic) suit was for some reason dismissed in (sic) Venkatamma in 1905 executed Ex. (sic) of sale in favour of Tiruvenkatacharlu and the latter sold the property; to the defendant by Ex. 1 on the 13 April 1909. Venkatamma died in 1910.

(2.) The Subordinate Judge makes two mistakes of law. He says that Venkatamma's possession was originally permissive. I shall assume that this is a correct statement of fact. Then he says that possession originally permissive could never become adverse. In this, of course, he is entirely wrong. I shall take the following statement of the law from Rustomji's well-known Book on Limitation, page 610 (3 Edition): It is not indispensable that the entry should be adverse in its inception. Unless adverse in its inception, possession will be presumed to continue as it began, yet this does not preclude the occupant from setting up an adverse claim at any time he chooses by any act which changes the character of his occupancy from amicable to adverse.

(3.) Again the learned Author says: Where a party is in possession of lands in privity with the original owner, nothing short of an open and explicit disavowal and I disclaimer of a holding under that title and assertion of title in himself brought home to the owner, will satisfy the law.