SREEMAN NALLANCHAKRAVARTHULA SAMPATH KUMARA VENKATARANGACHARYULU AYYAVARLAM GARU (DECEASED) Vs. JAMMI TURANGA RAO

JUDGEMENT

(1.) THIS is an appeal from the decision of the learned Subordinate Judge of Cocanada in appeal No. 119 of 1931. The appellant was the plaintiff in O.S. No. 166of 1930 on the file of the District Munsiff of Peddapuram in which he sued under the provisions of Order 21, Rule 63 of the Civil P. C. to set aside the order made on a claim petition. The facts are comparatively simple. The property concerned in the claim was one half share in two vacant sites and a house. The appellant thought that he had purchased the whole of these properties on 15 April, 1918, when a sale deed Ex. A was executed in his favour by Venkatasubba Rao and Ramadoss, the sons of one J. Chikka Rao. In 1921 the respondent filed a small cause suit, against one Venkataseshagiri Rao who was a son of a first cousin of J. Chikka Rao and in execution of his decree he attached what he alleged to be the undivided half share in these properties belonging to Venkataseshagiri Rao. Now it is not disputed that at the time of the sale in 1918, Venkataseshagiri Rao's branch of the family to which he and J. Chikka Rao belonged was entitled to one half of the joint family properties. It is therefore not disputed that on the 15 April, 1918, the two sons of J. Chikka Rao were not in a position to sell to the appellant any more than the one half share which belonged to their branch of the family. The sale-deed Ex. A therefore conveyed to the appellant title to one half share only. The other half share which had belonged to Venkataseshagiri Rao was attached by the respondent on 31 October, 1929. The appellant put in a claim petition which was dismissed on 6 January, 1930. The order of the learned District Munsiff dismissing this petition is Ex. F. On 23 June, 1930, the plaintiff filed O.S. No. 166 of 1930 to set aside the claim order and to establish his own title.

(2.) THE appellant bases his claim on adverse possession as against Venkataseshagiri Rao, the Judgment-debtor in the small cause suit. It is clear that on the date of the attachment 31 October, 1929, twelve years had not elapsed from the date of the sale-deed, Ex. A, that being the date on which it is assumed that the appellant's adverse possession began; twelve years had not elapsed on 6 January, 1930, when the learned District Muntiff dismissed the claim petition. But on 23 June, 1930, when this suit was instituted by the appellant more than twelve years had elapsed since 15 April, 1918. Now the appellant's contention is that by reason of this fact his title by adverse possession has been completed. THE learned Subordinate Judge disagreeing with the learned District Munsiff who tried the suit has held that what was to be decided was the rights of the parties on the date of the attachment, 31 October, 1929, or at the latest on the date on which the claim petition was dismissed. THE learned Counsel for the appellant has referred us to Seetharami Reddi V/s. Venku Reddi (1901) 11 M.L.J. 344 and Ranganatha Aiyar V/s. Srinivasa Aiyangar (1925) 49 M.L.J. 656. In those cases, it was held that the attachment of a judgment-debtor's interest in immovable property did not stop the running of adverse possession by the trespasser. THE learned Subordinate Judge preferred to follow the case of Pandiyan Pillai v. Vellayappa Rowther (1917) 33 M.L.J. 316, which is a very similar case to this. It has been suggested that we should have this case referred to a Full Bench since the decisions of this Court are conflicting. THE case however is a very old one; it is now nearly nine years, since the attachment took place and we do not think that the matter is of sufficient difficulty or importance to be referred to a Full Bench. THE learned Subordinate Judge has pointed out that if the appellant had filed his suit to set aside the claim order on the day after the claim order was passed or on any day before 14 April, 1930, he would have had no hope of success. THE learned Subordinate Judge thinks that it is impossible for the plaintiff by waitipg a few months more till 23 June, 1930, to clothe himself with additional rights and to compel the rightful owner, namely, the judgment-debtor to lose his right to the property. We agree with the learned Subordinate Judge in this view; and we agree with him that the decision in Ranganatha Aiyar V/s. Srinivasa Aiyangar (1925) 49 M.L.J. 656 is not really in conflict with this principle. In a suit like this to set aside the claim order it is clear that the rights of the parties on the date of the attachment or oh the date of the order are the rights which have to be taken into consideration. On 6 January, 1930, the appellant (assuming him to be in adverse possession as against Venkataseshagiri Rao) had not been in possession for twelve years, and therefore he had not perfected his title by prescription. THErefore on that date the real owner of the one half share which was attached was Venkataseshagiri Rao. THE effect therefore of the order passed by the learned District Munsiff on the claim petition was to declare that in so far as Venkataseshagiri Rao's half share was concerned the appellant was holding it not on his own behalf but on behalf of the judgment-debtor. To succeed in the suit the appellant was therefore bound to show that this finding was incorrect. We think it is too obvious that he cannot do this by waiting for five months more and then saying that even though he had no title in January he has got a title in June and therefore the claim order was wrong. In this view we find ourselves in agreement with the learned Subordinate Judge and we dismiss this appeal with costs.