JUDGMENT
1. Having failed in both the Courts below, the plaintiffs have preferred this Second Appeal against the concurrent dismissal of their suit for declaration of their alleged title to the suit property and for possession thereof.
2. The 11th defendant is one Sri Sivaramasubbu Swami Madalaya Kalvi Kazhagam represented by its President and the
other defendants are said to be members of the said Kazhagam. All the said defendants are respondents herein. Both the Courts have held that the 11th defendant has perfected title by adverse possession to the suit property, it being in adverse possession right from 1944.
3. The suit property admittedly originally belonged to one Ramasami, the husband of ore Parakkammal and the father of one Uthiammal. After the death of Ramasami, the said Parakkammal and Uthiammal were in possession of the property. Admittedly Parakkammal died in 1911 and Uthiammal, the daughter of Ramasami died in 1932. Both of them were only life estate holders after the death of Ramasami and while both of them were alive, they executed Ex. A-1 settlement deed dated 20-2-1911 in favour of Sivaramasubbu Samiyar Samadhi. The 1st plaintiff is son of one Venkatasami Naicker, who is son of the brother of abovesaid Ramasamy and the 2nd plaintiff is son of one Sathurappa Naicker, who is the son of yet another brother of the abovesaid Ramasami, both the plaintiifs have claimed the suit property as reversioners after the death of the abovesaid female life estate holders Parakkammal and Uthiammal. Their claim is that the abovesaid Ex. A-1 settlement is void and the Courts below also have concurred with their claim and held that the said settlement is void.
4. However, the claim of the 11th defendant, which has been upheld by the Courts below is that the said suit property has been in the possession and enjoyment of it for more than the statutory period of 12 years and so it has perfected title to it by adverse possession right from 1944. It also raised a plea of estoppel as the 2nd plaintiff’s father executed Ex. B-1 release deed in favour of one of the above referred to settlors under Ex. A-1, viz., Parakkammal, releasing his right as rever-sioner in the suit property. It also appears that he also filed a suit, O.S. No. 231 of 1933, claiming right in the suit property, but that suit was withdrawn.
5. There may not be necessity to deal with the abovesaid question of estoppel since that concerns only with the 2nd plaintiff and even
if that contention of the 11th defendant is upheld, the said estoppel plea would not apply to the 1st plaintiff and it has yet to be seen whether the relief granted by the Courts below based on adverse possession could be upheld. Therefore, the more vital question in this second appeal is regarding the above referred to adverse possession claimed by the 11th defendant and if the finding of the Courts below on that aspect is upheld by this Court, both the plaintiffs could not get the reliefs prayed for by them. In the above circumstances, the question of adverse possession alone was argued by learned Counsel for the plaintiffs-appellants.
6. On this aspect, the first limb of his argument is that the 11th defendant is only a fluctuating body and it cannot prescribe title by adverse possession. But, this contention has no merit. The 11th defendant is a society, registered under the Societies Registration Act (Central Act XXI of 1860). Exhibit B-4, which contains the relevant registration certificate under the said Act, proves the said fact. If that is so, it is clear that the 11 th defendant has a separate juristic existence, apart from its members. (Vide Rukminiamma v. Venkata Ramdas, AIR 1940 Mad 949). Even though the members of such a society fluctuate from time to time, the identity of the society is sought to be made continuous by reason of the provisions of the said Act.
7. Nextly, learned Counsel for the appellant contends that there is neither plea nor proper proof regarding the abovesaid adverse possession by 11th defendant. In this connection, he also very much relied on the following passages in Ponnaiyan v. Munian (Died),
(1995) 1 Mad LW 680 :–
“Adverse possession becomes hostile to the rightful owner, when a person openly and continuously possesses a land under a claim of right adverse to the title of the true owner for the statutory period. Adverse possession means a hostile possession which is express or implied in denial of the title of the true owner. ….. It is well
established that a person who claims title to the property by adverse possession must definitely allege and prove how and when
adverse possession commences and what was the nature of his possession.”
He also points out that the said decision relies on the decisions in S. M. Karim v. Bibi Sakina, , Karmega Kone v. Udayar Kone, (1979) 1 Mad LJ 419 and Anantha Pillai v. Rathnasabapathy Mudaliar, (1968) 2 Mad LJ 574.
8. The first aspect of his submission is that in the present case, there is no plea as to when actually (he adverse possession commenced. The actual plea in the written statement of llth defendant regarding adverse possession is as follows:–
(Matter in Vernacular Omitted. . . Ed.)
Thus, it js found that inter alia this written statement of 11th defendant also adopts the written statement of 10th defendant. The relevant plea in the written statement of 10th defendant is as follows:–
(Mailer in Vernacular Omitted. . . Ed.)
But, all that learned Counsel for the appellants submits is that in the abovesaid pleas, there is no actual reference to the date of commencement of adverse possession. In this connection, apart from pointing out the abovesaid passage in (1995) 1 Mad LW 680 (supra), he also points out the following passage in (supra):–
“Adverse possession must be adequate in continuity in publicity and extent and a plea, is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found….. a mere suggestion in the relief clause that there was an uninterrupted possession for ‘several 12 years’ or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea,”
9. No doubt, in the above two decisions, there is an observation that there must be plea to show when possession becomes adverse. But, it must be noted that the abovesaid observation has been made in the light of the facts of those two cases. In (supra), the Supreme Court points out that the High Court below held that the plea of
adverse possession was not raised at all in the suit and that the said plea was raised only before the Supreme Court. It also points out that a mere suggest ion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. But, in the present case, as already shown, there is clear plea in the abovesaid written statements. Only in the light of the facts in the Supreme Court case, the Supreme Court had observed that there must be a plea to show when the possession becomes adverse, so that the starting point of limitation against the party affected could be found.
9.A. Here, it must he noted that it is well settled rule of construction that a judgment must be read as a whole and observations from the judgment should be considered in the light of questions, which were before the Court. As observed by the Supreme Court in C.I.T. v. Sun Engineering Works (Private) Ltd., , it is neither desirable, nor permissible to pick out a word or a sentence from the judgment of the Supreme Court, divorced from the context of the question under consideration and treat it to be the complete “law” declared by the Supreme Court. Similar observations have also been made in Madras Bar Association, etc. v. The Central Board of Direct Taxes, etc., (1995) 2 Mad LW 530.
9.B. Even with reference to the above referred to observation made in(1995) 1 Mad LW 680 (supra) the same principle would apply. There it is the case of the plaintiff that the suit properties are the ancestral properties of the plaintiff, and after stating so, the plaint proceeds as follows:–
(Matter in Vernacular Omitted. . . Ed.)
After quoting the abovesaid passage, the learned Judge, who decided (1995) 1 Mad LW 680 (supra), himself says thus:–
“A reading of the above extracted portion of pleading would show that at one stretch he would say that the suit properties are ancestral properties and at the same time would say he has got title by prescription since he has
been enjoying for long years by paying kist ar.d patta standing in his name…..
A reading of the plaint as well as his deposition in the Court would show that the plaintiff claims the property only as his anceslral property. ….”
Only in such a context the learned Judge has held that there is no plea in the abovesaid case as to how and when adverse possession commences. Such a situation does not at all arise here in the present case. There is a clear plea of adverse possession and in such a situation simply because the actual date of commencement of adverse possession is not specifically suited in the written statement, it cannot be said that there is no plea of adverse possession.
10. Nextly, learned Counsel for the appellants argues that there is no proof of requisite animus for claiming adverse possession. Here again, I am unable to concur with the said learned Counsel. He does not dispute the actual finding of the Courts below that right from 1944 till the date of suit in 1977, the 11th defendant is in possession of the suit property. But, what he contends is that the said possession is not adverse possession since the requisite animus has not been proved. But, I find from the evidence of D.W. 1, the President of the 11th defendant, the following deposition:–
(Matter in Vernacular Omitted.. . Ed.)
As against the abovesaid deposition that 11th defendant had been auctioning the suit property and enjoying the same, there is no cross-examination at all. While so, it is clear that the llth defendant has been in possession and enjoyment of the suit property as owner and in the circumstances the requisite animus is very much manifested.
11. Learned Counsel for the 11th respondent aiso relies on the Explanations (a) and (b) to Article 65 of the Limitation Act. In the light of the said provision under Article 65 of the Limitation Act, adverse possession begins from the death of the previous female owner Uthiammal in 1932 itself. Therefore, according to the said learned counsel adverse possession has been perfected long back at the end of
12 year period from 1932 itself. Learned Counsel for the appellants has no argument contra this regard.
12. In the above circumstances, there is no merit in the second appeal and hence it is dismissed with costs.
13. Appeal dismissed.