JUDGMENT
Velu Pillai, J.
1. S. A. No. 595 of 1961 arising from O. S. No. 304 of 1953 is by the first defendant therein, who is the assignee-decree-holder in O. S. 187 of 1121 and S. A. 871 of 1961 arising from O. S. 406 of 1953 is by defendants 2 and 3 therein, and they raise the question, whether two properties which originally belonged to one Ramacha Kurien are attachable in execution of the decree in O. S. 187 of 1121.
2. The bare facts may be stated, first with reference to O. S. 304 of 1953. The decree in O. S. 187 of 1121 was obtained by the second defendant against Thomas, a son of Kurien, and the properties were attached as belonging to Thomas, Kurian had three more sons, Varghese, Mathen and Chacko. In the year 1086, he made a partition of his properties among his sons by Ext. III, by which the suit property was allotted to Varghese. The plaintiffs are the widow and children of Varghese. There is a provision in Ext. III, that Varghese was to pay a sum of Rs. 148 to Chacko within one year and that on default, the latter was to take possession of the suit property and enjoy the same. According to the plaintiffs, Varghese made payment and had been in possession of the property and after him the plaintiffs are in possession, and according to the first defendant Varghese did not pay Chacko, Chacko took over the property, and afterwards transferred it to Kurian in the year 1091 and Kurien sold it to Thomas in the year 1099 and his heirs defendants 3 to 9 are in possession.
3. Chacko’s widow and children had sued the heirs of Kurien in O. S. 129 of 1110 with respect to the properties allotted to Chacko, the suit property being item 2 of B Schedule in that suit. Chacko’s original title was upheld. To the attachment of the suit property, the claim preferred by the plaintiffs was dismissed and so they instituted O. S. 304 to set aside the order dismissing the claim. The two courts below have held, that the property belonged to Thomas; while the trial court dismissed the suit on that ground, the appellate court held that the plaintiffs have established their title by adverse possession.
4. In this court, learned counsel for the first defendant contested the finding of the lower court that possession of the property had been with Varghese and his heirs, the plaintiffs. Going through the evidence, it is all one way. The plaintiffs called witnesses to speak to their possession and to the possession of Varghese. Pws. 2, 3 and 4 are independent witnesses and neighbours of the suit property. Their evidence which has been accepted by the Judge cannot be discarded simply on the ground, that in cross-examination with respect to other properties allotted to Chacko they said that Chacko had been in possession although Chacko died long ago. As against their evidence, the only counter-evidence was that of Dw. 1 the first defendant.
The Additional Judge in appeal has also referred to Ext. B, the decree in O. S. 347 of 1121 obtained by the third defendant, the son of Thomas against the first plaintiff, for recovery of possession on the basis of an alleged lease; ultimately the lease was found against. Ext. M series, tax receipts, support the plaintiffs and they cover the period of 1106 to 1123 M. E.
The first defendant has not been able to produce even copies of thandapers to prove any payment of tax by Thomas. The evidence being all one way, we hold, agreeing with the Judge, that Varghese, and after his death the plaintiffs, have been in possession of the property all the time. There is no reason to think, in the absence of a special case for the first defendant, that Varghese had been out of possession for some time soon after the year 1087, during which Chacko or those claiming under him had bean in possession; his case was, that pursuant to Ext. III Varghese lost possession after the period of one year stipulated in Ext. III. This is not proved.
On the above grounds we are satisfied that Varghese has been in possession. Such possession as against the true owner entitled to it, had all the qualities of adverse possession, as to continuity, adequacy and publicity. If so, upon the expiry of twelve years from the 18th Edavom 1087, Varghese acquired title to the property by prescription.
5. Learned counsel for the first defendant contended relying principally on Ponnu v. Achuthan, 1964 Ker LT 463: (AIR 1965 Ker 177) that there had been a break in the continuity of possession on delivery of possession in the year 1122 pursuant to Ext. B decree before it was set aside, until the property was restored to the possession of the first plaintiff. In the case cited, it was held by me, that once the person having title regains lost possession, it becomes original possession and wipes out the period of absence of possession and if he loses possession again there is a fresh dispossession within Article 142.
The argument was, that once possession was obtained by the third defendant under Ext. B decree, the prior period of absence of possession was effaced, that the restoration of the property to the first plaintiff constituted dispossession within Article 142 and he had twelve years for recovery of possession, and that such period not having expired before the suit was filed, the plaintiffs have not acquired title to the properties.
The case cited does not apply to the facts of the present case, for on the finding of the appellate Judge which we have accepted, Varghese had already perfected his title by adverse possession by the 18th Edavom, 1099. So he had become the owner of the property and therefore the subsequent dispossession pursuant to Ext. B did not affect that title.
The subsequent discontinuance of possession was for a short time only. This contention of learned counsel for the plaintiffs receives support from several decided cases, D. R. Adinarayanaswamy v. G. Papamma, AIR 1963 Andh Pra 121 being the latest of them all. Nalini Bhusan Roy v. Hiralal Roy, AIR 1930 Cal 225 is another case in point. The principle is stated thus in Brindabun Chunder v. Tara Chand, (1873) 11 Beng LR 237 as quoted in AIR 1930 Cal 225:
“It also appears to me to be the accepted doctrine in our Courts that, if a party who has been 12 years out of possession, and whose suit is therefore barred, should again get into possession he is not (to use an English phrase) remitted to his old title; our Courts adopting as pointed out by Sir Lawrence Peel in Sbib Chunder v. Shib Kissen, (1854) 1 Boul 70 at p. 79, the English Rule that there is no remitter to a right for which the party had no remedy by action at all.”
If a party who is out of possession for twelve years and whose suit for possession is therefore barred, is again let into possession, he is not remitted to his old title. The principle if that when the title of the former owner has been extinguished by prescription, his title is not restored and he will be treated only as a trespasser should he come into possession again.
6. It follows as a result, that the property in O. S. 304 of 1953 belonged to the plaintiffs therein and Thomas the judgment-debtor In O. S. 187 of 1121 had no interest in it. So S. A. 595 of 1961 fails and is dismissed with costs.
7. In S. A. 871 of 1961 the claim preferred in O. S. 187 of 1121 to the attachment of the suit property in O. S. 406 of 1953 by the second defendant therein, a son of Varghese, was allowed. His case was, that the property was allotted by Ext. III to Mathen, that under Ext. III his father Kurien had a right to sell the property on Mathen’s default to pay the amount stipulated for maintenance, and that the father did sell the property by Ext VII in the year 1099 to Thomas. So Thomas got title to the properly which was therefore liable to attachment.
The claimant contended, that by an exchange deed Ext. A of the year 1091, the property fell to Chacko and he was in possession, until his death. It was sold in the year 1114 to defendants 2 and 3, the sons of Varghese and they are in possession. The two courts below have repelled the contentions of the defendants and held the property to be attachable. The only point pressed on behalf of defendants 2 and 3 Before the Additional Judge was, that after Ext. A, Kurien was not competent to deal with the property as he had done. This contention could not be sustained, because Kurien was not a party to Ext. A. It was also found, that Ext. A had not taken effect. On these grounds, the contentions of the defendants were all negatived. We see no reason to disturb these findings. There is no merit in this second appeal which is dismissed with costs.