PETITIONER:
M.S.JAGADAMBAL
Vs.
RESPONDENT:
SOUTHERN INDIAN EDUCATION TRUST & ORS
DATE OF JUDGMENT02/11/1987
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)
CITATION:
1988 AIR 103 1988 SCR (1) 722
1988 SCC Supl. 144 JT 1987 (4) 484
1987 SCALE (2)925
ACT:
Civil Procedure Code, 1908: Sections 96-100-Suit for
possession of property-Possession continues with title
holder until defendant acquires title by adverse possession-
Court in appeal does not reverse finding of fact rested or
proper appreciation of evidence.
HEADNOTE:
%
The appellant's Husband purchased the lands in dispute
under Ex. P2 wherein it was recited that the property was
not fetching any income, that irrigation from the tank had
failed, and that as the property was a pit which required
Rs.2,000 for filling it was sold for meeting certain family
expenses.
The appellant, after the death of her husband,
instituted a suit in High Court for recovery of the land
purchased by her husband and for mesne profits and other
connected reliefs, alleging that the property was in
possession and enjoyment of her husband during his life
time, and subsequently in her possession and enjoyment, and
that the neighbouring land owner, i.e. respondent No. 1 had
trespassed and encroached upon the suit property taking
advantage of her helpless condition as a widow. The suit was
resisted by the respondents contending that the appellant
had no title to the suit property and the suit was barred by
time. The respondents denied trespass or encroachment and
set up title in themselves, contending that the appellant
was not in possession at any time within 12 years next
before the suit.
A Single Judge of the High Court, found that the
appellant's husband, during his life time, and the appellant
after her husband's death had been in possession and
enjoyment of the suit property and held the title in her
favour. He also held that the respondent trespassed the suit
property after measurement and demarcation of the land by
the Tahsildar in Jan/Feb, 1984, and, therefore, the
appellant was in possession within 12 years prior to the
date of filing the suit. The suit was accordingly decreed.
Aggrieved by the judgment, the respondents filed an
appeal before the Division Bench which, while affirming the
appellant's title to
723
the property, held that the appellant had satisfactorily
established title to the suit property. On the question of
possession, however, it observed that the appellant had not
proved her possession of the suit property at any time
within 12 years prior to the suit and the evidence adduced
by her was vague and unacceptable. At the same time, it held
that the respondents had not perfected title by adverse
possession.
In the appeal by special leave, it was contended that
the appellate Court had no jurisdiction to reverse the
finding of fact properly recorded by the trial Judge and
that the suit property was a low-lying area with deep pit
where water stagnated during rainy reason and was seasonably
submerged, making it incapable of use and enjoyment and the
legal presumption was that possession continued with the
title holder.
Allowing the appeal,
^
HELD: 1. Possession continues with the title holder
unless and until the defendant acquires title by adverse
possession. There would be no continuance of adverse
possession when the land remains submerged and when it is
put out of use and enjoyment. In such a case the party
having title could claim constructive possession provided
the title had not been extinguished by adverse possession
before the last submergence. There is no difference in
principle between seasonal submersion and one which
continues for a length of time. [730D-E]
Basanta Kumar Roy v. Secretary of State ILR Vol. 44
(1917) Calcutta series 858 at 871-2 and Sarkar on Evidence
Vol. 2, 13th Edn. p. 110 referred to.
In the instant case, the appellant has proved title to
the property. The respondents have not acquired title by
adverse possession. The property as described in the sale
deed Ex. P 2 was a vacant land fetching no income. It was
called "Pallam" or pond that was seasonally submerged, but
it makes little difference in the position of law. As a
general rule, possession of part is in law possession of the
whole, if the whole is otherwise vacant. [731D-E]
2. The appellate court does not reverse a finding of
fact rested on proper appreciation of the oral evidence.
This is a rule of practice which has almost the force of
law. [728B-C]
Sarju Pershad v. Raja Jawaleshwari Pratap Narain Singh
JUDGMENT:
724
]1950] Vol.I SCR 781 relied on.
In the instant case, the trial judge on a consideration
of every material on record reached the conclusion that the
appellant was in possession of the property and it was only
in 1954 that she was dispossessed. This conclusion was also
based on the credibility of the witnesses examined by the
parties. The Division Bench reversed that finding without
due regard to the probability of the case and the
considerations which weighed with the trial judge. [728G-H]
The Division Bench appears to have missed important
features which have not been properly explained by the
respondents, namely, about the western boundary of the
property purchased by the respondents and the discrepancy in
the area of the property purchased by first respondent which
has been shown differently in Exs. P6, P7 and P8, and the
contradictory stand of DW 3, Secretary of the first
respondent-trust, who was the star witness in support of the
respondents’ case, regarding the first respondent’s title
and the appellant-s possession of the disputed property.
While DW 3 denied in his written statement the appellant’s
allegation that her land was encroached by the respondents
in the early part of January-February 1954, he stated before
the Court that he did not investigate the title and could
not take personal responsibility for the said statement.
This was the final blow to the respondents’ case, which the
Division Bench has failed to appreciate. [729F-H; 730A]
3. The trial court did not frame an issue as to the
respondents perfecting title to the suit property by adverse
possession. The respondents did not produce any evidence in
support of the plea of adverse possession. They were neither
misled in their approach to the case nor denied of
opportunity to put forward their evidence. It is, therefore,
not proper at this stage to remand the case to enable the
respondents to make good their lapse. [727G]
The Judgment of the Division Bench has therefore, to be
set aside, and that of Single Judge restored. [731F]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 235 of
1974.
From the Judgment and order dated 2.8.71 of the Madras
High Court in O.S.A. No. 37 of 1963.
725
S. Padmanabhan and A.T.M Sampath for the Appellant. A
M. Abdul Khadar, Mrs R. Ramachandran for Respondent No.
1.
S. Balakrishnan for Respondent No 3, 4 and 5.
The Judgment of the Court was delivered by
JAGANNATHA SHETTY, J. This appeal by Special Leave has
been preferred against the judgment dated September 2, 1981
passed by the High Court of Madras in O.S.A. 37 of 1963.
The facts briefly stated are:
Under Exhibit P. 2 dated May 24, 1929 Nagappa Naicker
purchased from Manicak Naickar and his sons nanja lands
in old Survey Nos. 187 and 188 (R.S. No. 3859) an
extent of about 3/8 cawnie, roughly about 9 grounds for
Rs.275. It was recited in the document that the
property was not fetching any income, that irrigation
from the tank had failed and that as the property was a
pit which required Rs.2,000 to fill, it was sold for
meeting certain family expenses. The boundary of the
property was given as north of Government Maclean’s
Garden, west of the fields of Thanappa Naicker and
Srinivasa Naicker, south of the field of Srinivasa
Naicker, and last of the road, Ramanatha Mudaliar’s
vacant land and Masilamani Gramani’s house. It may be
noted that the re-survey number was given as 3859.
On May 14, 1941 Nagappa died. Jagdambal appellant is
the widow of Nagappa. She instituted the suit C.S. No.
52/1960 which was tried on the original side of the Madras
High Court. The suit was for recovery of the land purchased
under Ex. P2 by her husband and for mean profits with other
connected reliefs. She alleged that the property was in
possession and enjoyment of Nagappa during his life time and
subsequently in her possession and enjoyment. It was her
case that neighbouring land owner South India Education
Trust (‘SIET’) trespassed and encroached upon the suit
property taking advantage of her helpless condition as a
widow. The SIET is the 5th defendant in the suit.
We may now trace the title of the adjoining plot of
land owned by the SIET. One Kuppuswami Naiker was the owner
in possession of
726
a land measuring 35 grounds 1989 sq. ft. This entire land
was sold to Rani of Vuyyur for Rs. 10,000 under Ex. P6 dated
July 30, 1940. In the schedule, the property sold was
described as R.S. No. 3859/1, 3859/ 2 and part of 3859/3.
The property was also described as bounded on the west
partly by Nagappa Naicker’s land and partly by Mount Road
and Duraiswami Gramani’s house. According to the sale deed
the property sold was only 35 grounds 1980 sq. ft. and it
was marked yellow in the plan attached thereto. Under Ex. P7
dated December 24, 1953 Rani of Vuyyur sold the property she
purchased under Ex. P6 to SIET. The property was described
as bearing R.S. No. 3859/1, 3859/2 and 3859/3 part and 3872
in Teynampet measuring about 38 grounds. In the schedule to
Ex. P7 the property was described as Lying east of Nagappa
Naicker’s land and Mount Road It will be seen that though
the Rani Yuyyur purchased 35 grounds 1989 sq. ft. the extent
mentioned in Ex. P7 was about 38 grounds. On February 11,
1954 the SIET exchanged its land under Ex. P8 with the
property belonging to the defandants 1 to 4 in the suit. Ex.
P8 recited that the SIET was conveying an extent of 43
grounds 1324 sq. ft. comprised in R.S. Nos. 3859;1, 3859/2
and 3859/3 and 3872 Mount Road Madras. Here again the land
has been described as bounded on the west by Nagappa
Naicker’s land and Mount Road. The curious thing to be noted
is about the extent of land exchanged. 38 grounds purchased
by the SIET under Ex P7 has become 43 grounds 1324 sq. ft.
in the Exchange deed Ex. P8.
The suit was resisted by all the defendants. They
contended that the plaintiff has no title to the suit
property and the suit was barred by time. They denied the
trespass or encroachment alleged by the plaintiff. They set
up title in themselves They particularly contended that the
plaintiff was not in possession at any time within 12 years
next before the suit.
The plaintiff examined in all seven witnesses as
against six witnesses by the defendants.
The learned single judge after considering the material
on record held that Nagappa during life time and the
plaintiff after Nagappa’s death had been in possession and
enjoyment of the suit property. The title was also held in
her favour. On the question of trespass by the defendants,
learned judge with reference to documents and pleadings
observed that the defendants trespassed the suit property
after the measurement and demarcation of the land by the
Tehsildar in January 1954. That means, learned judge held
that the plaintiff was in posses-
727
sion within 12 years prior to the date of filing the suit.
Accordingly the suit was decreed with a direction to the
defendants to vacate the suit land marked as R.S. No. 3859/4
and deliver-vacant possession to the plaintiff.
Being aggrieved by the judgment of learned Judge, the
SIET preferred an appeal before the Division Bench of the
High Court. The Division Bench affirmed the finding as to
the plaintiff’s title to the property. It was held that the
plaintiff has satisfactory established the title to the suit
property. On the question of possession, however, it was
observed that the evidence adduced by the plaintiff was
vague and unacceptable. The plaintiff has not proved her
possession of the suit property at any time within 12 years
prior to the suit. At the same time, it was also observed
that the defendants have not perfected title by adverse
possession. So stating the Division Bench allowed the appeal
and dimissed the suit.
Hence this appeal by the plaintiff.
Mr. Padmanabhan learned counsel for the appellant urged
two contentions before us. The first contention related to
the jurisdiction of the appellate court to reverse the
finding of the fact properly recorded by the trial judge.
The second contention rested on the undisputed nature of the
suit property and the legal presumption of possession in
favour of the title holder.
Mr. Abdul Khader and S Balakrishnan, learned counsel
for the respondents, urged in support of the judgment of the
Division Bench. In the alternate they contended that it is a
fit case for remand to consider the question of adverse
possession raised by the SIET in the pleading.
We are not pursuaded by the alternate contention urged
by learned counsel for the respondent. The trial court did
not frame an issue as to the defendants perfecting title to
the suit property by adverse possession. The defendants did
not produce any evidence in support of the plea of adverse
possession. It is not the case of the defendants that they
were misled in their approach to the case. It is also not
their case that they were denied opportunity to put forward
their evidence. It is, therefore, not proper for us at this
stage to remand the case to enable the defendants to make
good their lapse.
We find considerable justification for the criticism of
Mr.
728
Padmanabhan about the manner in which the Division
Bench considered the oral evidence in the case. So far as
the appreciation of oral testimony by the appellate court is
concerned there are two view points. One view is that the
Court of appeal has undoubted duty to review the recorded
evidence and to draw its own inference and conclusion. The
other view is that the Court of appeal must attach due
weight to the opinion of the trial judge who had the
advantage of seeing the witnesses and noticing their look
and manner. The rule of practice which has almost the force
of law is that the appellate court does not reverse a
finding of fact rested on proper appreciation of the oral
evidence. That was the view taken in Sarju Pershad v. Raja
Jawaleshwari Pratap Narain Singh & Ors., ]1950] Vol. I SCR
781 at 783 where this Court observed:
“The question for our consideration is undoubtedly
one of fact, the decision of which depends upon
the appreciation of the oral evidence adduced in
the case. In such cases, the appellate Court has
got to bear in mind that it has not the advantage
which the trial judge had in having the witnesses
before him and of observing the manner in which
they deposed in Court. This certainly does not
mean that when an appeal lies, on fact, the
appellate Court is not competent to reverse a
finding of fact arrived at by the trial judge. The
rule is and it is nothing more than a rule of the
practice that when there is conflict of oral
evidence of the party or any matter in issue and
the decision hinges upon the credibility of the
witnesses, then unless there is special feature
about the evidence of a particular witness which
has escaped the trial judges notice or there is a
sufficient balance of improbability to displace
his opinion as to where the credibility lies, the
appellate Court should not interfere with the
finding of the trial judge on a question of fact.”
In the instant case, it may be noted that the trial
judge on a consideration of every material on record reached
the conclusion that the plaintiff was in possession of the
property and it was only in 1954 she was dispossessed. This
conclusion was also based on the credibility of the
witnesses examined by the parties. The Division Bench
reversed that finding without due regard to the probability
of the case and the considerations weighed with the trial
judge. The Division Bench appears to have missed the
important features which have not been properly explained by
the defendants.
729
First, about the western boundary of the property
purchased by the defendants. In all the sale-deeds forming
links in the defendants title Ex. P6 of 1940, Ex. P7 1953
and Ex. P8 of 1954, the western boundary has been shown as
the property belonging to Nagappa. What was that property
belonging to Nagappa which formed the western boundary? It
was certainly not the land bearing R.S. No. 3862 and 3863
although counsel for the respondents made an attempt before
us to show that the said land formed the western boundary.
But there is nothing on record to lend credence to this
belated submission. It was never the case of the parties
that the plaintiff had no other property apart from R.S. No.
3862 and 3863.
Second, the SIET purchased under Ex. P7 the land
measuring 38 grounds. Within a couple of months thereafter
the SIET conveyed under the deed of exchange Ex. P8, 43
grounds 1324 sq. ft. If one prefers to go yet further back,
the Rani of Vuyyur purchased only 35 grounds 1989 sq. ft. It
was the same property which was the subject matter of sale
under Ex. P7 and later the subject matter of exchange under
Ex. P8. One fails to understand how that waxing could be
possible without an attempt to grab the adjacent property
Thirdly, the plaintiff has come forward with specific
case that her land was encroached by the defendants in the
early part of January-February 1954. That has been denied in
the written statement filed by the Secretary of the SIET.
The Secretary was examined as D.W. 3. He was a star witness
in support of the defendants case. The sale deed Ex. P7 was
in his name. The exchange deed EX. P8 was executed by him
along with treasurer of the SIET. D.W. 3 in his evidence has
given a go-by to his pleading. He stated that he did not
examine the title deeds of his property. He did not know
anything about the contents of the title deeds except in a
general way. He did not take any responsibility for any
portion of the sale deed in favour of the SIET. He said that
the exchange deed was given to him by the Chairman of the
SIET and he did not actually draft it. He also stated that
he could not explain how the property which was 38 grounds
at the time of purchase under Ex. P7 came to be described as
43 grounds in Ex. P8, although he later said that Ex. P8 was
written after measurement and demarcation of the property.
We do not know whether he feigned his ignorance, or whether
he was trying to be ingenious. We could only conclude that
he was fair enough and ingenuous. He stated before the Court
that he did not investigate the title and could not take
personal responsibility for the statement he made in the
written statement to the effect that the plaintiff was not
in possession of the property. This was the final blow
730
to the defendants case which the Division Bench has failed
to A appreciate.
The force of the second contention, urged for the
appellant cannot also be gainsaid. We have already stated
that the suit property was admittedly located in a low lying
area with a deep pit where water stagnated making it
incapable of use and enjoyment. The sale deed Ex. P2 by
which the property was purchased by Nagappa described the
property as a pit. It has come from the evidence that the
land was 8 feet below the road level. It was called
“Pallam”. There would be water in the “Pallam” during the
rainy reason making it a pond (see the evidence of P.W. 1)
It was also admitted before the trial judge that the suit
property was low Lying where water did stagnate. The learned
judge, however, found it unnecessary to draw legal
presumption of possession because on other material he found
the defacto possession with the plaintiff till 1954. The law
with regard to possession of such land is clear. The
possession continues with the title holder unless and until
the defendant acquires title by adverse possession. There
would be no continuance of adverse possession when the land
remains submerged and when it is put out of use and
enjoyment. In such a case the party having title could claim
constructive possession provided the title had not been
extinguished by adverse possession before the last sub-
mergence. There is no difference in principle between
seasonal submersion and one which continues for a length of
time. This view has been applied by the Privy Council in
Basanta Kumar Roy v. Secretary of State, ILR Vol. 44 (1917)
Calcutta series 858 at 871-2 where Lord Summer observed:
“The Limitation Act of 1877 does not define the
term “dispossession” but its meaning is well
settled. A man may cease to use his land because
he cannot use it, since it is under water, he does
not thereby discontinue his possession:
constructively it continues, until he is
dispossessed; and, upon the cessation of the
dispossession before the lapse of the statutory
period, constructively it revives. “There can be
no discontinuance by absence of use and enjoyment,
when the land is not capable of use and enjoyment”
(Per Cotton, L.J. in Leigh v. Jack (1). It seems
to follow that there can be no continuance of
adverse possession, when the land is not capable
of use and enjoyment, so long as such adverse
possesion must rest on de facto use and
occupation. When sufficient time has elapsed to
extinguish the old title and start a new one, the
new owner’s posses-
731
sion of course continues untill there is fresh
dispossession, and revives as it ceases
In the case of Secretary of State for India
v. Krishnamoni Gupta, [1902] ILR 29 Cal 5 18 their
Lordships’ Board applied this view to a case,
where a river shifting its course first in one
direction and then in the opposite direction,
first exposed certain submerged lands, of which
the Government took possession, and then after a
few years flooded them again. No rational
distinction can be drawn between that case and the
present one, where the reflooding was seasonal and
occurred for several months in each year. It was
held that when the land was re-submerged the
possession of the Government determined, and that
while it remained submerged, no possession could
be deemed to continue so as to be available
towards the ultimate acquisition of title against
the true owner.”
These principles, in our opinion, are equally
applicable to the present case. The plaintiff has proved
title to the property. The defendants have not acquired
title by adverse possession. The property as described in
the sale deed Ex. P2 was a vacant land fetching no income.
It was called “Pallam” or pond that was seasonally
submerged. The entire land might not be seasonally
submerged, but it makes little difference in the position of
law. “As a general rule possession of part is in law
possession of the whole, if the whole is otherwise vacant. ”
Sarkar on Evidence Vo. 2 13th Edn. p. 110.
In the view of the foregoing discussion, we allow the
appeal with cost, set aside the judgment of the Division
Bench and restore that of the learned single judge.
N.P.V. Appeal allowed.
732