Decided on August 12,1954

Komanduri Srinivasa Raghavacharyulu Appellant
Polavarapu Venkataswamy And Another Respondents


UMAMAHESWARAN,J. - (1.) The plaintiff is the appellant. The simple question for consideration in the second appeal is as to whether the defendants have acquired title to the suit property by adverse possession. The trial Court held that the defendants did not make out their plea of adverse possession, and decreed the suit. On appeal the Subordinate Judge reversed the judgment and decree of the District Munsif. Hence the plaintiff has preferred the second appeal.
(2.) For the purpose of appreciating the plea of adverse possession, it is necessary to set out a few relevant facts. The suit properties belonged to K. Venkatacharyulu who executed a usufructuary mortgage, Ex. P. 4, dated 8-5-1874 for Rs. 4,000/- in favour of V. Raghavalu and two others for a term of 68 years ending with 8-5-1942. The plaintiff is the adopted son of Srinivasacharyulu who obtained an assignment of the usufructuary mortgage under Ex. P. 5 dated 28-12-1880. In spite of the execution of the assignment deed Ex. P. 5, the mortgagor's daughter's son Nelaturu Narasimhacharyulu filed a suit O.S. No. 120 of 1925 on the file of the Subordinate Judge's Court of Bapatla, for redemption of the mortgage and for the recovery of possession of the hypotheca. The suit was compromised on 30-7-27 as per Ex. D. 2. As the plaintiff did not pay the amount to the defendants as per the terms of the compromise half the property was taken by the plaintiff and half by the defendants therein. The property obtained by the plaintiff under the compromise was subsequently sold to the defendants and the defendants have been in open and continuous possession from the date of the compromise in regard to a half and from the date of the sale in regard to the other half. The short question, therefore, is whether the possession of the defendants from the date of the compromise and the sale is adverse to the plaintiff, the adopted son of the assignee of the equity of redemption under Ex. P. 5.
(3.) It is in evidence that Narasimhacharyulu, who instituted O.S. No. 120 of 1925, is the husband of the plaintiff's son-in-law's sister. In the reply notice issued by the defendants, Ex. P. 6(a), as also in the written statement, the defendants averred that the plaintiff was fully aware of the previous suit and the compromise entered into therein. The plaintiff who examined himself as P.W. 1, did deny knowledge of the suit or the compromise. So, no question was put to him in the cross-examination as to whether he was present at the time of the suit and at the time of the compromise. The 1st defendant who examined himself as D.W. 1, stated that the plaintiff was aware of the suit and that he was also aware of the compromise, though he could say whether he was present on the date of the compromise. Nothing was elicited in the cross-examination to lead to the conclusion that what the 1st defendant stated in the examination-in-chief was true. D.W. 2 stated that the plaintiff accompanied Narasimhacharyulu at the time of the compromise. The Subordinate Judge accepted the evidence of D.Ws. 1 and 2 and found that the plaintiff was fully aware of the suit and the compromise. He, however, held that the conduct of the plaintiff was such as to estop him from claiming the suit properties. If the plaintiff knew fully that a suit was filed by Narasimhacharyulu for redeeming the mortgage and that it was compromised, under which half the property was given to the mortgagees and half taken by the mortgagor's representative, there can be no doubt he knew that the mortgagee and Narasimhacharyulu were in possession from the date of the compromise in their own right and adversely to him. Subsequently, Narasimhacharyulu sold the property to the defendants and their possession as from the date of purchase is adverse to the plaintiff. Therefore it is clear according to the Full Bench decision of the Madras High Court in - ' Periya Aiya Ambalam v. Shanmugasundram', 38 Mad 903 (A.I.R. 1914 Madras 334 (2) 5 that the possession of Narasimhacharyulu and the defendants was adverse to the plaintiff and the defendants acquired title by prescription. The head-note in - '38 Mad 903' is in the following terms : "Where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such possession will be adverse to the mortgagor from the time the mortgagor has knowledge of the assertion (though he may then be entitled according to the terms of the mortgage to recover possession from the mortgagee).";

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