DODDIPATLA KAMESWARA RAO Vs. TARAMETLA SOMANNA
LAWS(APH)-1954-1-1
HIGH COURT OF ANDHRA PRADESH
Decided on January 30,1954

DODDIPATLA KAMESWARA RAO Appellant
VERSUS
TARAMETLA SOMANNA Respondents

JUDGEMENT

- (1.) (After setting out the facts and, on an appreciation of the evidence, oral and documentary, confirming the findings of the trial Judge on all other points, His Lodship continued):( Thelearned Advocate for the respondents contended that as the Committee was formed only in December 1939, there coiuld be no adverse possession as against the Committee, till it was formed and the President and Secretary thereof elected.Artcile 134-B, Limitation Act runs in the following terms:Description of suit.Period of Time from which periodlimitation.begins to run.By the Manager of a Hindu,12 years.The death, resignation Muhammadan or Buddist or removal of the religious or chartiable transferor. endowment to recover possession of immovable property comprised in the endowment which has been sold by a previous manager for a valueable consideration.
(2.) As the plaintiffs now claim title by adverse possession, they msut show that their possession was adverse to the Committee and that they were in uninterrupted and continuous possession for a period of 12 years. The Subordinate Judge accepted this contention and foiund on paras. 36 to 39 that as the Committee was not formed till Decembr 1939 the adverse possession did not at all start.
(3.) The learned Advocate for the respondents relied on -- Palaniyandi Malavarayan v. Vadamalai Vidayan, 2 Mad LW 723: (AIR 1916 Mad 1001) (A). The headnote sets out the legal position correctly and is in the following terms: "The right to trusteeship of a temple cannot be acquired by adverse possession so long as there isno lawful trustee who could claim to recover the office from the person who claims to hold it adversely to him."Sundaram Ayyar J., had carefully and elaborately reviewed all the Indian and English authorities bearing on this question and held that even on principle, there are good reasons for holding that it would be contrary to public interests that a person should acquire the office of a trustee by mere possession when there is no one competent to recover it from him.This decision was followed in -- Manickkam Pillai v. Thanikachallam Pillai, AIR 1917 Mad 706 (1) (B). The relevant observations are as follows: "Since however there were no properly consituted trustees of the plaintiff temple there wasno person with knowledge of the acts of the defendants or capable of taking proceedings necessary for the protection of the suit property and, therefore, possession was not adverse until the appointment of trustees in 1900".In Seeti Kutti v. Kunhi Pathumma, AIr 1919 Mad 972 (FB) at pages 984-985 (C), Srinivasa Iyengar J., followed the two decisions referred to above. The decision in -- Murray v. The East Indian Co., (1821) 106 ER 1167 (D), referred to and relied on by Sundaram Ayyar J., in -- Palaniyandi Malavarayan v. Vadamalali Odayan, (A), was followed in -- Nataraja Desikar v. Govinda Rao, AIR 1923 Mad 461 at p. 462 (E), in support of the proposition that, when there is no one competent to sue, there can be no cause of action and consequently limitation cannot run because there is no one against whom it can run. In -- Subbiah Thevar v. Samiappa Mudaliar, AIR 1938 Mad 353 (F), a Full Bench of the Madras High Court followed the decision in -- Murrary v. The East India Co., (D), and held that "there can be no cause of action until there is a party capable of suing and until there is a cause of action there can be no question of the law of limitation coming into operation."It was further held that, if a sole trustee of a public trust committed a breach of trust, the loss could not be made good, without voluntary action on the trustees party, until there was a new trustee and that the right to sue in such a case lay in abeyance until a new trustee was appointed and that under Art. 120, Limitation Act the period of six years limitation would not commence until the new trustee was appointed.It was further pointed out that if the co-trustees, had alos made themselves liable for the breach of trust, the position would be the same as in the case of a defaulting sole trustee while if there were other trustees who were themsleves not liable, the period of limitation started running immediately the loss was occasioned because those other trustees had in themsleves the right to sue their co-trustees for the loss occasioned by him. In Venkateswara v. Venkatesa, AIR 1941 Mad 449 (FB) (G), the question arose whether Art. 134 (b), Limitatioin Act applies to the case of an alienation of the property of a Hindu religious insitutioin by the manager for valuable consideration and the succeeding Manager sought to impeach that alienation by suit when there was an interval of time between the death, resingation or removal of the previous manager and the election or appointment of the subsequent manager. The third question that was referred to the Full Bench was, whether "if Art. 144, Limitation Act be held applicable to the case, adverse possession under that Article must be deemed to have commenced from the date of the death of the previous Matadhipathi who effected the alienation and not from the date of the lection or appointment of the plaintiff. Though in the order of refernece Venkataramana Rao J., referred to he provisions of the several English statutes, the caseof (1821) 106 ER 1167 (D) and to the earlier decision of the Madras High Court in AIR 1916 Mad 1001 (A); AIR 1917 Mad 706 (1) (B); and AIR 1938 Mad 353 (F) I find tht in the opinion delivered by the Full Bench by Leach C. J., there is no discussion whatsoever or reference made to those cases while answering the third question referred to it. The only case that was referred to in that connection was the Privy Council decision in Ramacharan Das v. Naurangi lal, AIR 1933 PC 75 (H). It was held that the starting point of limitation under both Art. 134 (b) and Art. 144 was the date of the death, resignation or removal of the manager who effected the alenation and not the date of the election or the appointment of his successor. While Venkataramana Rao J., and Horwill J., agreed with Leache C. J., Abdul Rahman J., and Krishnaswamy Ayyangar J., dissented and delivered separate judgments. Abdul Rahman J., distinguished the Privy Council case in AIR 1933 PC 75 (H), and held as follows: "It has no bearing to a case like the present where there was no manager in existence to challenge the action taken by the previous manager. If the Math is unable to sue without the intervention of the human agency of its own manager, limitation cannot be, in my opinion, held, to run against the Math either". Krishnaswamy Ayyanagar J., also took the view that the aforesaid Privy Council decisioin was clearly inapplicable. Both the dissenting Judges held that adverse possession must be held to have commenced from the date of the plaintiffs election or appointment and not earlier. I have carefully persued the dissenting Judgment as also the opinion of Leach C. J., and in my opinion, the majority view as to the starting point of limitation under Art. 144 is, with great respect, not correct. I prefer to adopt the view taken by the dissenting Judges and my reasons are as follows: Column 3 of Art. 144 clearly sets out that the time from which period begins to run is when the possession of the defendant becomes adverse to the plaintiff which postulates that the plaintiff against whom adverse possession commences must be capable of suing. S. 17 Limitation Act, also embodies the same principle.;


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