VARKEY JOSEPH Vs. CHANDAPILLAI VARKEY
LAWS(KER)-1967-6-33
HIGH COURT OF KERALA
Decided on June 30,1967

VARKEY JOSEPH Appellant
VERSUS
Chandapillai Varkey Respondents

JUDGEMENT

M.MADHAVAN NAIR,J. - (1.) THIS appeal is in a suit for declaration of title and recovery of possession.The facts are thus:The suit property belonged admittedly to one Kollavana Mathew Varghese.He mortgaged it to Bersleeba Kathanar on 26th Mithunam 1089 as per Ext.D -4;and mortgaged it again to his nephew,Varkey Chandapillai,in the year 1103 "both without transfer of possession.Kathanar,the first mortgagee,instituted O.S.No.1059 of 1097 on the file of the Munsiff,Thiruvella to enforce his mortgage,and it was decreed.St.Mary's Church,Niranom,having obtained a money decree against the Kathanar attached that decree,got itself impleaded in the decreeholder's place,executed the decree and purchased the property in court -sale on 24th Makaram 1117 and took possession through Court as per the delivery report,Ext.P -1,dated 12th Makaram 1118.Chandapillai,the second mortgagee,instituted O.S.No.13 of 1118 on the file of the District Judge,Mavelikara,with­out impleading the aforesaid Church to enforce his mortgage,purchased the property in execution sale on 10th September 1952(the sale certificate is Ext.D -3)and took possession through Court on 1st April 1953,as per the delivery report Ext.D -5.Defendants 1 to 3 are the children of the said Chandapillai and the 4th defendant is their lessee. The plaintiff,having obtained an assignment of the rights of the Church as per Ext.P -1,dated 12th February 1954, has instituted this suit on August 13,1956,with the prayers aforementioned.The defendants contended that the Church never had been in actual possession of the property but Kollavana Mathew Varghese continued in possession in spite of the delivery proceedings against him in O.S.No.1056 of 1097 that they took actual possession as per the court -sale and delivery in O.S.No.13 of 1118,and that the plaintiff had no subsisting title to the property.The Munsiff accepted the plaintiff's case and decreed the suit;but it has been reversed by the Subordinate Judge who held the plaintiff to have had no subsisting title.Hence this second appeal by the plaintiff.
(2.) THIS is a case of competition between the prior and subsequent mortgagees.Admittedly both the mortgages were simple mortgages unaccompanied by possession.At the time of institution of the suit,O.S.No.1056 of 1097,the second mortgage had not come to existence.It was during the pendency of that suit that the second mortgage came to be.Under section 52 of the Transfer of Property Act,the pendency of a suit commences from the date of its institution and lasts up to the final satisfaction of the decree and any dealing with the suit property by any party to the suit during such pendency will not affect the rights of the other party under the decree.As the second mortgage of 1103 was executed during pendency of the litigation on the first mortgage,no right under the second mortgage can be urged by the defendants against the proceedings had on the first mortgage.The court -sale and delivery had in O.S.No.1056 of 1097 are therefore binding on Chandapillai,the second mortgagee,and his heirs,defendants 1 to 4.It is pertinent to note that in the suit on the second mortgage,O.S.No.13 of 1118,the equity of redemption was not represented as the court -auction -purchaser in the first mortgagee's suit in whom it vested in Makaram 1117,long before that suit,was not made a party.No title to the equity of redemption can then be claimed to have been acquired under the court -sale in that latter suit of 1118.It then follow that the title to the property is vested only in plaintiff and that the defendants had no claim of title thereto to be urged against the plaintiff.Counsel for defendants -respondents contends that the defendants had got actual possession of the property as per the delivery in their favour on 1st April 1953.Be it so,I am afraid it cannot avail against the plaintiff in this suit instituted on August 13,1956.Their allegation that in spite of the delivery proceedings in O.S.No.1056 of 1097 the mort­gagor,Kollavana Mathew Varghese,had been in possession of the property bears no proof in this case.Counsel contended that Ext.P -1 is clear that at the time the Church took delivery,the property had been under cultivation by tenants of the judgment debtor,that the delivery had then was subject to those tenancies and that there is no evidence in this case that those tenants were ever ousted from the property,arguing thereby that there is no proof that the plaintiff or his predecessor -in -interest,the Church,had ever been in physical possession of the property between 1118(1943)and the date of this suit in 1956,for over 12 years of this suit,and that therefore the plaintiff must be held to have had no subsisting title on the date of this suit.Ext.P -1,the delivery report, so far as it concerns the property in this suit reads thus: ...[VERNACULAR TEXT COMITTED]... It is clear that the possession delivered to the Church was physical possession of the property subject only to the right of the cultivator who had raised tapioca crop thereon to collect the emblement when they became ripe for harvest.Subject to that licence all possession had been transferred to the decree -holder.The cultivator too had by attestation in the delivery report acknowledged his surrender of what­ever right he had in the property subject to a licence to collect the emblement then on the land.There is nothing to show that the cultivator continued ever after the harvest of that emblement.In the absence of positive evidence,the presumption can only be that the delivery of possession by Court to the Church under Ext.P -1 was true and effec­tive.In the absence of proof of the contrary the Church has to be presumed to have continued in such possession.The only fact in proof of disturbance of the Church's posses­sion is the delivery proceedings had in favour of the defen­dants on 1st April 1953.This suit for recovery from the defendants has been instituted on 13th August 1956.
(3.) IT is contended by counsel that,under Article 142 of the Limitation Act,1908,the plaintiff who seeks to recover the property from the admitted possession of the defendants is bound to show a subsisting title in himself which can be done only by proving that he had been in possession of the property at some time within 12 years of the suit and that if that be not proved by him,whatever be the defects of the defendants case,the plaintiff has to be non -suited.The said Article 142(the corresponding Article of the Limitation -Act,1963,is Article 64 which refers to dispossession only)read thus: "For possession of immovable property when the plaintiff,while in possession of the property has been dispossessed or has discontinued the possession Twelve years The date of the discontinuance." According to the plaint the plaintiff was dispossessed by defendants 1 to 4 in March 1954.The defendants 1 to 4 claim possession only from and after 1st April 1953.( The 5th defendant does not claim any interest in this suit.) Though the defendants 1 to 4 stated that before them Kollavana Mathew Varghese was in possession,no evidence has been adduced to substantiate that.Nor has the plaintiff been able to prove that the trespass by defendants 1 to 4 was in March 1954.It is in the background of these facts and circumstances that the onus of proof has to be considered here. In Secretary of State for India v. Krishnamoni Gupta 29 I.A.104 a case under the Indian Limitation Act 1877 "the Judicial Committee of the Privy Council had observed: "For the purpose of trying the question whether limitation applies the Government must be regarded as a trespasser and dispossessor of the rightful owners,and in the opinion of Their Lordships it would be contrary both in principle and authority to imply such constructive possession in favour of a wrongdoer so as to enable him to obtain thereby a title by limitation.In order to sustain a claim to land by limitation under the Indian Act,there must,in their opinion,be actual possession of a person claiming as of right by himself or by persons deriving title from him.The possession of the Government was in fact determined by the submergence of the land which then became derelict and so long as it remained in that state no title could be acquired against the true owner.Sir R.Garth,however,seems to have thought that in such a case the possession of the trespasser would continue until the true owner resumed possession. Their Lordships cannot agree in this view.On the contrary,they think that on the dispossession of the Government by the vis major of the floods the constructive possession of the land was(if anywhere)in the true owners.In the case of Trustees,Executors,and Agency Co. v. Short (13 App.Cas.793)it was laid down by this Board that;if a person enters upon the land of another and holds possession for a time,and then without living acquired title under the statute abandons posses­sion,the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place.™And the opinion is in Smith v.Lloyd 96 R.R.837 of Parke B.is there quoted that there must be both absence of possession by the person who has the right and actual possession by another to bring the case within the statute. Their Lordships think that for this purpose dispossession by vis major has the same effect as voluntary abandonment,and they are of opinion that the case of Kally Churn Sahoo v. Secretary of State (Ind.L .R. 6 Calc.725)was wrongly decided,and ought to be overruled.In the result,therefore,Their Lordships agree with the Court below in this part of the case,and the appeal of the Secretary of State fails." Referring to Article 142,Limitation Act,1908,in Brojendra Kishore Roy Chowdhury v. Bharat Chandra Roy ( 1915)31 I.C.242. Sir Asutosh Mookerjee and Beachcroft,JJ.have observed: "The plaintiff may have been deprived of possession,but he cannot aptly be said to have been dispossessed,or,to have discontinued possession within the meaning of Article 142 of the Indian Limitation Act.Dispossession implies the coming in of a person and the driving out of another from possession.Discontinuance implies the going out of the person in possession and his being followed into possession by another." No decision that dissents from the above observation is brought to my notice.On the other hand,the dictum of the Supreme Court in Kashi Bai v. Sudha Rani Ghose A.I.R.1958 S.C.434 seems to adopt it in effect.There the appellant and respondents were lessees of coal mining rights in adjoining areas.In 1917 the predecessor -in -interest of the appellant trespassed into a portion of the land leased to the respondents and sank two inclines and two airshafts and dug out coal there from.There had been no continuous working of the mine except from 1923 to 1926,from 1931 to 1933 and in 1939 and in 1944.In 1945,the respondents instituted the suit for possession of the area trespassed by the appellant and for allied reliefs.The appellant contended that he and his predecessor -in -interest had been in sole,exclusive uninterrupted and undisturbed possession of the area openly to the knowledge of the respondents from 1917 onwards and had therefore acquired title by adverse posses­sion.The Supreme Court,dismissed the appeal,observing: "During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner." It shows that even though the land had been previously trespassed upon and occupied by somebody in ouster of the owner when no one is in actual occupation of the land,its possession has to be held to have reverted to the owner.In other words,a dispossession of or discontinuance of possession by the owner implies that somebody else is actually on the land.If the evidence on record in a case does not show actual possession by anybody the Court must assume that the real owner of the land was or is in possession.When it is seen that the plaintiff's predecessor -in -interest had title and possession in 1118 and there is nothing to show that at any time before April 1953 anybody else had been in possession or occupation of the land,it must be found that the plaintiff's predecessor -in -interest was in possession till April 1953.There is therefore no defect of proof on the part of the plaintiff.It then follows that the suit instituted in 1956 is not barred by limitation.As the plaintiff is found to have title to the property and the suit is in time,he is entitled to decree.;


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