TALLAPRAGADA ACHUTHARAMAYYA Vs. AYYAGARI SOORAPPAYYA

JUDGEMENT

(1.) These appeals arise out of a decision of the survey officer wider the Madras Survey and Boundaries Act. Second Appeal No. 537 relates to a suit in which the appellant was the plaintiff and sued for possession on the basis of a favourable decision of the survey officers; whereas S.A. No. 538 relates to O.S. No. 154 in which the respondent who was an unsuccessful claimant before the survey officer sued to set aside the survey officer's decision. The decision of the survey officer in appeal is contained in Ex. F, dated 31 October, 1924. According to the appellant the relevant survey notification is Ex. S, dated 22nd November, 1926. But the learned Subordinate Judge has accepted the respondent's contention that limitation began to run only from a subsequent survey notification, Ex. X, dated 21 April, 1931. If this contention is wrong, the respondent's suit O.S. No. 154 is clearly time barred with reference to the terms of Section 14 of the Madras Survey and Boundaries Act. The learned Subordinate Judge gives no reasons for holding that the notification with which we are concerned is Ex. X and not Ex. Section The appellant adduced in evidence his own application to the survey authorities for a copy of the final notification relating to the survey of the village with which we are concerned, in response to which application a copy of the notification (Ex. S) was issued "to him. This notification clearly purports to be a notification under Section 13 of the Act that the survey of certain villages including the suit village is complete. Ex. X on which the respondent relies purports to be a notification that the "survey of sub-divisions consequent on the re-settlement miscellaneous inspection" of certain villages including the suit village is complete. The learned Munsif points out that there is no evidence whatever that the delimitation of the boundaries which formed the subject of the complaint to the survey officer was part of the post survey operations terminating with Ex. X and not part of the main survey terminating with Ex. Section The fact that the survey department itself regarded Ex. S as the final notification terminating the survey is shown by the copy application. I have myself no doubt that Ex. S is the final notification and that Ex. X relates to what is in effect a supplemental survey terminated by a supplemental final notification. Except in so far as it relates to boundaries changed in the course of the supplemental survey, I do not see how Ex. X can be taken to extend the time for filing a suit to contest the correctness of the boundaries laid down in the main survey which had been terminated by the statutory notification of 1926. It follows that the respondent's suit O.S. No. 154 of 1931 was barred by limitation and was rightly dismissed by the trial Court. S.A. No. 538 of 1934 must therefore be allowed with costs throughout.

(2.) The other appeal - the appeal from the decision in the appellant's suit - raises questions of greater difficulty. Granting that the decision of the survey officer finding title to the disputed land in favour of the plaintiff concludes the question of title as on that date, the question remains whether the respondent can or cannot resist the plaintiff's suit based on the survey officer's order by proving adverse possession. There is a definite plea of adverse possession in the respondent's written statement and though no specific issue has been raised, the question of possession has been gone into in detail by both the Courts and I think the respondent would be entitled to rely on his plea, if it could be established by good evidence. Now quite clearly no plea of adverse possession would be of any avail unless he could tack on to more recent possession his alleged hostile possession anterior to the survey officer's order. Whether this is legally permissible or not, is a question on which there has been a good deal of difference of opinion. The Full Bench, in the case of Muthirulandi Poosari V/s. Sethuram Aiyar , held that when there was a dispute about a boundary which had been the subject of an order by the survey officer under Section 11 of Act IV of 1897, that order, if not set aside in appeal or by a suit as contemplated in the Act, was conclusive as to the rights of the parties and none the less so because the unsuccessful party who was in possession at the date of the order was not subsequently ousted from possession. Now in the face of this decision, it is clearly not open to the respondent who was found by the survey officer not to be entitled to the land in dispute, to urge in reply to the plaintiff's suit based on the survey officer's decision that that decision was wrong. Consequently he cannot contend that he had a title, whether documentary or by virtue of adverse possession, at the time when the adverse order of the survey officer was passed. I think that it would also follow from the Full Bench decision that if the survey officer's order gave a definite finding that the respondent was1 at the time of his order out of possession and that possession lay with the appellant, it would not be open to the respondent to urge that the finding is wrong and to base a claim on adverse possession continuing from a time anterior to the survey officer's order. But when the order of the survey officer is based on evidence of title and does not purport to give a finding regarding actual physical possession at the time of the order, or when it finds that the unsuccessful claimant was in physical possession but was in possession only as a trespasser, can the unsuccessful claimant in a subsequent proceeding urge by way of defence that he has acquired title by adverse possession tacking together hostile possession anterior to and subsequent to the survey officer's order? On this question there is a definite ruling of a Bench of this Court in Azhagaperumal Pillai V/s. Rasa Pillai (1931) 62 M.L.J. 399 to the effect that the decision of the survey officer, not purporting to record any definite finding or actual possession, does not ipso facto dispossess any party nor make any legal break in existing possession so as to render ineffective for purposes of limitation any adverse possession running at its date. I may point out that the head note of this decision leaves out the qualification regarding the absence from the survey officer's decision of any adverse finding regarding actual possession. This omission is unfortunate and possibly has tended to a misunderstanding of the decision itself. Now this decision has been considered in two subsequent rulings. The case of Ramamurti v. Gajapatiraju (1932) 64 M.L.J. 361 : I.L.R. 56 Mad. 366 is a decision by Wallace, J., in a Letters Patent Appeal on a difference of opinion between Waller, J. and Krishnan Pandalai, J., of whom the former took the view that the decision in Azhagaperumal Pillai V/s. Rasa Pillai (1931) 62 M.L.J. 399 was wrong whereas the latter considered that it was right. Wallace, J., dissented from the Bench decision and held that it was contrary to the Full Bench ruling in Muthirulandi Pujari v. Sethuramier , the plain meaning of which was that the decision of the survey officer is conclusive on the question, of possession. This decision has been followed by Butler, J., in Seetharama Raju V/s. Narayana Raju . Now with the greatest respect to the learned Judges who decided these cases, it does seem to me that they have overlooked the qualification of the ruling of the Bench in Azhagaperumal Pillai V/s. Rasa Pillai (1931) 62 M.L.J. 399, with reference to the absence from the survey officer's decision of any finding regarding actual possession. Accepting the rule laid down by the Full Bench that the survey officer's decision is conclusive as to the rights of parties none the less because the unsuccessful party is not ousted from possession, it seems to me apparent that the survey officer's decision can only be final to the extent to which it purports to decide the rights of the parties. If it decides that the unsuccessful claimant is out of possession, then in my opinion it would not be open to that party, in the absence of a successful suit, as contemplated by the Act, to contend in subsequent proceedings that the survey officer was wrong and that he was actually in possession. The survey officer having decided that the unsuccessful claimant had no title, it would not be open to that party in subsequent proceedings to contend that he had on the date of the survey officer's order acquired title by adverse possession. But if the survey officer, merely on a consideration of the documentary evidence of ownership, gives an adverse finding regarding title, I see no reason why that finding should bar the unsuccessful claimant from contending in subsequent proceedings that at the time of the survey officer's order he had trespassed successfully on the land in question and that his unlawful possession continued and was openly hostile to the real owner for the period necessary, taking into consideration possession anterior to and posterior to the survey officer's order, for establishing title by adverse possession. Similarly, if the survey officer goes into the facts, finds that the unsuccessful claimant is in possession but that his possession is unlawful and lays down the boundary in accordance with his finding as to title, I see nothing in the survey officer's order to debar the unsuccessful party from asserting in a subsequent proceeding that his unlawful and hostile possession recognised to exist in the survey officer's order continued for such a period as to justify the plea of title by adverse possession in a later suit. In my mind, the governing factor must be what the survey officer actually decided. In the light of the Full Bench ruling the unsuccessful claimant cannot go behind that decision, but I see no reason why he should not in subsequent proceedings put forward any claim which is not inconsistent with that decision.

(3.) If this view of the law is correct, it follows that it is open to the respondent in the suit brought by the appellant to establish title by adverse possession if he can prove continuous possession both before and after the survey officer's order for the statutory period, always provided that the survey officer's order does not give a definite finding regarding the factum of possession at the time of his order which would bar the tacking of pre-survey possession which is necessary to complete the full period. The original order of the survey officer in this case is Ex. D. The finding regarding possession there is that the appellant and the respondent had originally a common tenant and that it was only after 1918 that it was possible for the respondent to assert possession adverse to the appellant. There is no clear finding one way or the other on the question of who was in physical possession at or about the time of the survey officer's order, which is based on documentary title. The order in appeal proceeds entirely on the documentary title together with evidence of payment of kist and does not refer to physical possession at the time of the order in question. I must hold that there is nothing in either of these orders to bar the respondent from contending that he was at that time in actual enjoyment of the land in a manner hostile to the appellant.