DHARAPURAM JANOPAKARA NIDHI, LTD BY ITS PRESENT SECRETARY A ADISESHA AYYAR Vs. KLAKSHMINARAYANA CHETTIAR

JUDGEMENT

(1.) The finding of the lower Courts is that this property has been enjoyed adversely by the defendant from a time prior to 9 July, 1917, and that he has therefore perfected a title to the property by adverse possession. In S.A., it is contended that, by operation of law, possession was interrupted on 9 July, 1917.

(2.) The learned Advocate for the appellant has emphasised that when a symbolical delivery is given or where a Boundary Officer determines a Boundary and an application is not made to a Civil Court within a year, adverse possession is deemed by law to have been broken. By analogy, he contends that where a Court dismisses a claim petition it is not open to the defeated claimant to contend that he was in possession on the date of his claim petition. The effect of a symbolical delivery or a decision of a survey officer is clearly different from that resulting from a mere order of Court. In the case of a symbolical delivery, an amin actually goes to the disputed property and openly declares that a symbolical delivery is given, and the person in possession and other interested parties are informed by proclamation and otherwise that henceforth a certain person is entitled to the legal possession of that property. A somewhat similar procedure is adopted under the Surveys and Boundaries Act. The learned Advocate for the appellant has referred me to Velayuthan Vs. Laksmana (1885) I.L.R. 8 Mad. 506 and Aisamma V/s. Moideen in support of his contention. In Velayuthan V/s. Laksmana (1885) I.L.R. 8 Mad. 506 there was an actual adjudication under Order 21, Rule 60 or its equivalent under the old Code, and the Judges held that as the aggrieved party had not filed a suit, it was not open to him to contend subsequently either that he had title to the property or had been in possession. This case was quoted with approval in Aisamma V/s. Moideen where the question was however different, in that the application was dismissed under the proviso of Order 21, Rule 58 because the application was unnecessarily delayed. There was therefore no adjudication on the question of possession, and it is difficult to follow why the claimant whose petition was dismissed had by implication an adverse finding on the question of possession. Although Velayuthan V/s. Laksmana (1885) I.L.R. 8 Mad. 506 was followed with approval, it was not discussed and the difference between the two cases was apparently not noticed.

(3.) Mr. V.V. Srinivasa Ayyangar on behalf of the respondent has two sound answers to the arguments adduced on behalf of the appellant which make it unnecessary for him to canvass the correctness of Velayuthan V/s. Laksmana (1885) I.L.R. 8 Mad. 506 and Aisamma v. Moideen . The first is that as the sale was not completed and the attachment was subsequently raised, any adverse finding on the claim petition became inoperative, and that the mere fact that a suit was not filed within a year did not disentitle him to raise the same contentions with regard to title and possession in subsequent proceedings. If the attachment had been raised within a year, then obviously no suit would have been necessary; for the unsuccessful claimant would have got what he wanted without the necessity of filing a suit. The question that arose in Kumar a Goundan V/s. Thevaraya Reddi (1924) 48 M.L.J. 616 was whether the fact that the attachment was raised beyond a year made any difference. Ramesam, J. says: The only difference that I can see between the two cases (the raising of the attachment within one year and the raising beyond one year) is that in the former case the unsuccessful claimant who waits incurs no risk, as he knows for certain within one year that the attachment in execution of it has ceased to exist; and in the latter, he takes a risk by not suing, as he cannot be certain, that the attachment will be raised. But I do not see why, when the event on which he takes his chance, viz., the cessation of the attachment by the payment of the decree, or for other reason, happens, he should not take advantage of it simply because he took risks in so waiting.