{"id":270098,"date":"1987-11-02T00:00:00","date_gmt":"1987-11-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-s-jagadambal-vs-southern-indian-education-trust-on-2-november-1987"},"modified":"2016-02-04T23:21:22","modified_gmt":"2016-02-04T17:51:22","slug":"m-s-jagadambal-vs-southern-indian-education-trust-on-2-november-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-s-jagadambal-vs-southern-indian-education-trust-on-2-november-1987","title":{"rendered":"M.S.Jagadambal vs Southern Indian Education Trust & … on 2 November, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M.S.Jagadambal vs Southern Indian Education Trust & … on 2 November, 1987<\/div>\n
Equivalent citations: 1988 AIR 103, 1988 SCR (1) 722<\/div>\n
Author: K Shetty<\/div>\n
Bench: Shetty, K.J. (J)<\/div>\n
           PETITIONER:\nM.S.JAGADAMBAL\n\n\tVs.\n\nRESPONDENT:\nSOUTHERN INDIAN EDUCATION TRUST & ORS\n\nDATE OF JUDGMENT02\/11\/1987\n\nBENCH:\nSHETTY, K.J. (J)\nBENCH:\nSHETTY, K.J. (J)\nRAY, B.C. (J)\n\nCITATION:\n 1988 AIR  103\t\t  1988 SCR  (1) 722\n 1988 SCC  Supl.  144\t  JT 1987 (4)\t484\n 1987 SCALE  (2)925\n\n\nACT:\n     Civil Procedure  Code, 1908:  Sections 96-100-Suit\t for\npossession  of\t property-Possession  continues\t with  title\nholder until defendant acquires title by adverse possession-\nCourt in  appeal does  not reverse finding of fact rested or\nproper appreciation of evidence.\n\n\n\nHEADNOTE:\n%\n     The appellant's  Husband purchased the lands in dispute\nunder Ex.  P2 wherein  it was  recited that the property was\nnot fetching  any income,  that irrigation from the tank had\nfailed, and  that as  the property  was a pit which required\nRs.2,000 for  filling it was sold for meeting certain family\nexpenses.\n     The  appellant,   after  the   death  of  her  husband,\ninstituted a  suit in  High Court  for recovery\t of the land\npurchased by  her husband  and for  mesne profits  and other\nconnected  reliefs,   alleging\tthat  the  property  was  in\npossession and\tenjoyment of  her husband  during  his\tlife\ntime, and  subsequently in her possession and enjoyment, and\nthat the  neighbouring land owner, i.e. respondent No. 1 had\ntrespassed and\tencroached upon\t the  suit  property  taking\nadvantage of her helpless condition as a widow. The suit was\nresisted by  the respondents  contending that  the appellant\nhad no title to the suit property and the suit was barred by\ntime. The  respondents denied  trespass or  encroachment and\nset up\ttitle in  themselves, contending  that the appellant\nwas not\t in possession\tat any\ttime within  12\t years\tnext\nbefore the suit.\n     A Single  Judge of\t the  High  Court,  found  that\t the\nappellant's husband, during his life time, and the appellant\nafter  her  husband's  death  had  been\t in  possession\t and\nenjoyment of  the suit\tproperty and  held the\ttitle in her\nfavour. He also held that the respondent trespassed the suit\nproperty after\tmeasurement and\t demarcation of\t the land by\nthe  Tahsildar\t in  Jan\/Feb,\t1984,  and,  therefore,\t the\nappellant was  in possession  within 12\t years prior  to the\ndate of filing the suit. The suit was accordingly decreed.\n     Aggrieved by  the judgment,  the respondents  filed  an\nappeal before  the Division Bench which, while affirming the\nappellant's title to\n723\nthe property,  held that  the appellant\t had  satisfactorily\nestablished title  to the  suit property. On the question of\npossession, however,  it observed that the appellant had not\nproved her  possession of  the suit  property  at  any\ttime\nwithin 12  years prior\tto the suit and the evidence adduced\nby her was vague and unacceptable. At the same time, it held\nthat the  respondents had  not perfected  title\t by  adverse\npossession.\n     In the  appeal by\tspecial leave, it was contended that\nthe appellate  Court had  no  jurisdiction  to\treverse\t the\nfinding of  fact properly  recorded by\tthe trial  Judge and\nthat the  suit property\t was a\tlow-lying area with deep pit\nwhere water stagnated during rainy reason and was seasonably\nsubmerged, making  it incapable of use and enjoyment and the\nlegal presumption  was that  possession continued  with\t the\ntitle holder.\n     Allowing the appeal,\n^\n     HELD: 1.  Possession continues  with the  title  holder\nunless and  until the  defendant acquires  title by  adverse\npossession.  There   would  be\tno  continuance\t of  adverse\npossession when\t the land  remains submerged  and when it is\nput out\t of use\t and enjoyment.\t In such  a case  the  party\nhaving title  could claim  constructive possession  provided\nthe title  had not  been extinguished  by adverse possession\nbefore the  last submergence.  There  is  no  difference  in\nprinciple  between   seasonal  submersion   and\t one   which\ncontinues for a length of time. [730D-E]\n     Basanta Kumar  Roy v.  Secretary of  State ILR  Vol. 44\n(1917) Calcutta\t series 858  at 871-2 and Sarkar on Evidence\nVol. 2, 13th Edn. p. 110 referred to.\n     In the  instant case, the appellant has proved title to\nthe property.  The respondents\thave not  acquired title  by\nadverse possession.  The property  as described\t in the sale\ndeed Ex.  P 2  was a  vacant land fetching no income. It was\ncalled \"Pallam\"\t or pond  that was seasonally submerged, but\nit makes  little difference  in the  position of  law. As  a\ngeneral rule, possession of part is in law possession of the\nwhole, if the whole is otherwise vacant. [731D-E]\n     2. The  appellate court  does not\treverse a finding of\nfact rested  on proper\tappreciation of\t the oral  evidence.\nThis is\t a rule\t of practice  which has\t almost the force of\nlaw. [728B-C]\n     Sarju Pershad  v. Raja Jawaleshwari Pratap Narain Singh\nJUDGMENT<\/a>:\n<\/pre>\n
724<\/span>
\n]1950] Vol.I SCR 781 relied on.\n<\/p>\n
     In the instant case, the trial judge on a consideration
\nof every  material on record reached the conclusion that the
\nappellant was  in possession of the property and it was only
\nin 1954\t that she was dispossessed. This conclusion was also
\nbased on  the credibility  of the  witnesses examined by the
\nparties. The  Division Bench  reversed that  finding without
\ndue  regard   to  the\tprobability  of\t the  case  and\t the
\nconsiderations which weighed with the trial judge. [728G-H]
\n     The Division  Bench appears  to have  missed  important
\nfeatures which\thave not  been\tproperly  explained  by\t the
\nrespondents, namely,  about  the  western  boundary  of\t the
\nproperty purchased by the respondents and the discrepancy in
\nthe area of the property purchased by first respondent which
\nhas been  shown differently  in Exs.  P6, P7 and P8, and the
\ncontradictory  stand   of  DW  3,  Secretary  of  the  first
\nrespondent-trust, who was the star witness in support of the
\nrespondents’ case,  regarding the  first respondent’s  title
\nand the\t appellant-s possession\t of the\t disputed  property.
\nWhile DW  3 denied  in his written statement the appellant’s
\nallegation that\t her land  was encroached by the respondents
\nin the early part of January-February 1954, he stated before
\nthe Court  that he  did not  investigate the title and could
\nnot take  personal responsibility  for the  said  statement.
\nThis was  the final blow to the respondents’ case, which the
\nDivision Bench has failed to appreciate. [729F-H; 730A]\n<\/p>\n
     3. The  trial court  did not  frame an  issue as to the
\nrespondents perfecting title to the suit property by adverse
\npossession. The\t respondents did not produce any evidence in
\nsupport of the plea of adverse possession. They were neither
\nmisled\tin   their  approach  to  the  case  nor  denied  of
\nopportunity to put forward their evidence. It is, therefore,
\nnot proper  at this  stage to  remand the case to enable the
\nrespondents to make good their lapse. [727G]
\n     The Judgment of the Division Bench has therefore, to be
\nset aside, and that of Single Judge restored. [731F]<\/p>\n
&
\n     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 235 of
\n1974.\n<\/p>\n
     From the  Judgment and order dated 2.8.71 of the Madras
\nHigh Court in O.S.A. No. 37 of 1963.\n<\/p>\n
725<\/span><\/p>\n
     S. Padmanabhan and A.T.M Sampath for the Appellant. A
\n     M. Abdul Khadar, Mrs R. Ramachandran for Respondent No.\n<\/p>\n
1.
\n     S. Balakrishnan for Respondent No 3, 4 and 5.
\n     The Judgment of the Court was delivered by
\n     JAGANNATHA SHETTY,\t J. This appeal by Special Leave has
\nbeen preferred\tagainst the judgment dated September 2, 1981
\npassed by the High Court of Madras in O.S.A. 37 of 1963.\n<\/p>\n
     The facts briefly stated are:\n<\/p>\n
     Under Exhibit  P. 2  dated May 24, 1929 Nagappa Naicker
\n     purchased from Manicak Naickar and his sons nanja lands
\n     in old  Survey Nos.  187 and  188 (R.S.  No.  3859)  an
\n     extent of about 3\/8 cawnie, roughly about 9 grounds for
\n     Rs.275.  It  was  recited\tin  the\t document  that\t the
\n     property was  not fetching\t any income, that irrigation
\n     from the tank had failed and that as the property was a
\n     pit which\trequired Rs.2,000  to fill,  it was sold for
\n     meeting certain  family expenses.\tThe boundary  of the
\n     property was  given as  north of  Government  Maclean’s
\n     Garden, west  of the  fields of  Thanappa\tNaicker\t and
\n     Srinivasa Naicker,\t south of  the\tfield  of  Srinivasa
\n     Naicker, and  last of  the road,  Ramanatha  Mudaliar’s
\n     vacant land  and Masilamani  Gramani’s house. It may be
\n     noted that the re-survey number was given as 3859.
\n     On May  14, 1941  Nagappa died.  Jagdambal appellant is
\nthe widow  of Nagappa.\tShe instituted\tthe  suit  C.S.\t No.
\n52\/1960 which  was tried  on the original side of the Madras
\nHigh Court.  The suit was for recovery of the land purchased
\nunder Ex.  P2 by her husband and for mean profits with other
\nconnected reliefs.  She alleged\t that the  property  was  in
\npossession and enjoyment of Nagappa during his life time and
\nsubsequently in\t her possession\t and enjoyment.\t It was\t her
\ncase that  neighbouring land  owner  South  India  Education
\nTrust (‘SIET’)\ttrespassed  and\t encroached  upon  the\tsuit
\nproperty taking\t advantage of  her helpless  condition as  a
\nwidow. The SIET is the 5th defendant in the suit.\n<\/p>\n
     We may  now trace\tthe title  of the  adjoining plot of
\nland owned  by the SIET. One Kuppuswami Naiker was the owner
\nin possession of
\n726<\/span>
\na land\tmeasuring 35  grounds 1989  sq. ft. This entire land
\nwas sold to Rani of Vuyyur for Rs. 10,000 under Ex. P6 dated
\nJuly 30,  1940. In  the\t schedule,  the\t property  sold\t was
\ndescribed as  R.S. No.\t3859\/1, 3859\/  2 and part of 3859\/3.
\nThe property  was also\tdescribed as  bounded  on  the\twest
\npartly by  Nagappa Naicker’s  land and\tpartly by Mount Road
\nand Duraiswami\tGramani’s house.  According to the sale deed
\nthe property  sold was\tonly 35\t grounds 1980 sq. ft. and it
\nwas marked yellow in the plan attached thereto. Under Ex. P7
\ndated December 24, 1953 Rani of Vuyyur sold the property she
\npurchased under\t Ex. P6\t to SIET. The property was described
\nas bearing  R.S. No. 3859\/1, 3859\/2 and 3859\/3 part and 3872
\nin Teynampet  measuring about 38 grounds. In the schedule to
\nEx. P7\tthe property  was described as Lying east of Nagappa
\nNaicker’s land\tand Mount  Road It  will be seen that though
\nthe Rani Yuyyur purchased 35 grounds 1989 sq. ft. the extent
\nmentioned in  Ex. P7  was about\t 38 grounds. On February 11,
\n1954 the  SIET exchanged  its land  under Ex.  P8  with\t the
\nproperty belonging to the defandants 1 to 4 in the suit. Ex.
\nP8 recited  that the  SIET was\tconveying an  extent  of  43
\ngrounds 1324  sq. ft.  comprised in R.S. Nos. 3859;1, 3859\/2
\nand 3859\/3  and 3872  Mount Road Madras. Here again the land
\nhas been  described  as\t bounded  on  the  west\t by  Nagappa
\nNaicker’s land and Mount Road. The curious thing to be noted
\nis about  the extent of land exchanged. 38 grounds purchased
\nby the\tSIET under  Ex P7 has become 43 grounds 1324 sq. ft.
\nin the Exchange deed Ex. P8.\n<\/p>\n
     The suit  was resisted  by\t all  the  defendants.\tThey
\ncontended that\tthe plaintiff  has  no\ttitle  to  the\tsuit
\nproperty and  the suit\twas barred  by time. They denied the
\ntrespass or  encroachment alleged by the plaintiff. They set
\nup title  in themselves They particularly contended that the
\nplaintiff was  not in possession at any time within 12 years
\nnext before the suit.\n<\/p>\n
     The  plaintiff  examined  in  all\tseven  witnesses  as
\nagainst six witnesses by the defendants.\n<\/p>\n
     The learned single judge after considering the material
\non record  held\t that  Nagappa\tduring\tlife  time  and\t the
\nplaintiff after\t Nagappa’s death  had been in possession and
\nenjoyment of  the suit\tproperty. The title was also held in
\nher favour.  On the  question of trespass by the defendants,
\nlearned judge  with reference  to  documents  and  pleadings
\nobserved that  the defendants  trespassed the  suit property
\nafter the  measurement and  demarcation of  the land  by the
\nTehsildar in  January 1954.  That means,  learned judge held
\nthat the plaintiff was in posses-\n<\/p>\n
727<\/span><\/p>\n
sion within  12 years  prior to the date of filing the suit.
\nAccordingly the\t suit was  decreed with\t a direction  to the
\ndefendants to vacate the suit land marked as R.S. No. 3859\/4
\nand deliver-vacant possession to the plaintiff.\n<\/p>\n
     Being aggrieved  by the  judgment of learned Judge, the
\nSIET preferred\tan appeal  before the  Division Bench of the
\nHigh Court.  The Division  Bench affirmed  the finding as to
\nthe plaintiff’s\t title to the property. It was held that the
\nplaintiff has satisfactory established the title to the suit
\nproperty. On  the question  of possession,  however, it\t was
\nobserved that  the evidence  adduced by\t the  plaintiff\t was
\nvague and  unacceptable. The  plaintiff has  not proved\t her
\npossession of  the suit property at any time within 12 years
\nprior to  the suit.  At the  same time, it was also observed
\nthat the  defendants have  not perfected  title\t by  adverse
\npossession. So stating the Division Bench allowed the appeal
\nand dimissed the suit.\n<\/p>\n
     Hence this appeal by the plaintiff.\n<\/p>\n
     Mr. Padmanabhan learned counsel for the appellant urged
\ntwo contentions\t before us.  The first contention related to
\nthe jurisdiction  of the  appellate  court  to\treverse\t the
\nfinding of  the fact  properly recorded\t by the trial judge.
\nThe second contention rested on the undisputed nature of the
\nsuit property  and the\tlegal presumption  of possession  in
\nfavour of the title holder.\n<\/p>\n
     Mr. Abdul\tKhader and  S Balakrishnan,  learned counsel
\nfor the respondents, urged in support of the judgment of the
\nDivision Bench. In the alternate they contended that it is a
\nfit case  for remand  to consider  the question\t of  adverse
\npossession raised by the SIET in the pleading.\n<\/p>\n
     We are  not pursuaded by the alternate contention urged
\nby learned  counsel for\t the respondent. The trial court did
\nnot frame  an issue as to the defendants perfecting title to
\nthe suit  property by adverse possession. The defendants did
\nnot produce  any evidence  in support of the plea of adverse
\npossession. It\tis not\tthe case of the defendants that they
\nwere misled  in their  approach to  the case. It is also not
\ntheir case  that they were denied opportunity to put forward
\ntheir evidence.\t It is, therefore, not proper for us at this
\nstage to  remand the  case to  enable the defendants to make
\ngood their lapse.\n<\/p>\n
     We find considerable justification for the criticism of
\nMr.\n<\/p>\n
728<\/span><\/p>\n
     Padmanabhan about\tthe manner  in\twhich  the  Division
\nBench considered  the oral  evidence in\t the case. So far as
\nthe appreciation of oral testimony by the appellate court is
\nconcerned there\t are two  view points.\tOne view is that the
\nCourt of  appeal has  undoubted duty  to review the recorded
\nevidence and  to draw  its own inference and conclusion. The
\nother view  is that  the Court\tof appeal  must\t attach\t due
\nweight to  the opinion\tof  the\t trial\tjudge  who  had\t the
\nadvantage of  seeing the  witnesses and\t noticing their look
\nand manner.  The rule of practice which has almost the force
\nof law\tis that\t the appellate\tcourt  does  not  reverse  a
\nfinding of  fact rested\t on proper  appreciation of the oral
\nevidence. That\twas the\t view taken in Sarju Pershad v. Raja
\nJawaleshwari Pratap  Narain Singh  & Ors<\/a>., ]1950] Vol. I SCR
\n781 at 783 where this Court observed:\n<\/p>\n
\t  “The question for our consideration is undoubtedly
\n\t  one of  fact, the  decision of  which depends upon
\n\t  the appreciation  of the  oral evidence adduced in
\n\t  the case.  In such  cases, the appellate Court has
\n\t  got to  bear in mind that it has not the advantage
\n\t  which the  trial judge had in having the witnesses
\n\t  before him  and of  observing the  manner in which
\n\t  they deposed\tin Court.  This certainly  does\t not
\n\t  mean that  when  an  appeal  lies,  on  fact,\t the
\n\t  appellate Court  is not  competent  to  reverse  a
\n\t  finding of fact arrived at by the trial judge. The
\n\t  rule is  and it is nothing more than a rule of the
\n\t  practice that\t when  there  is  conflict  of\toral
\n\t  evidence of  the party  or any matter in issue and
\n\t  the decision\thinges upon  the credibility  of the
\n\t  witnesses, then  unless there\t is special  feature
\n\t  about the  evidence of  a particular witness which
\n\t  has escaped  the trial judges notice or there is a
\n\t  sufficient balance  of improbability\tto  displace
\n\t  his opinion  as to where the credibility lies, the
\n\t  appellate Court  should  not\tinterfere  with\t the
\n\t  finding of the trial judge on a question of fact.”<\/p><\/blockquote>\n
     In the  instant case,  it may  be noted  that the trial
\njudge on a consideration of every material on record reached
\nthe conclusion\tthat the  plaintiff was in possession of the
\nproperty and  it was only in 1954 she was dispossessed. This
\nconclusion  was\t  also\tbased  on  the\tcredibility  of\t the
\nwitnesses  examined  by\t the  parties.\tThe  Division  Bench
\nreversed that  finding without due regard to the probability
\nof the\tcase and  the considerations  weighed with the trial
\njudge.\tThe  Division  Bench  appears  to  have\t missed\t the
\nimportant features which have not been properly explained by
\nthe defendants.\n<\/p>\n
729<\/span><\/p>\n
     First, about  the\twestern\t boundary  of  the  property
\npurchased by  the defendants.  In all the sale-deeds forming
\nlinks in  the defendants  title Ex.  P6 of 1940, Ex. P7 1953
\nand Ex.\t P8 of\t1954, the western boundary has been shown as
\nthe property  belonging to  Nagappa. What  was that property
\nbelonging to  Nagappa which  formed the western boundary? It
\nwas certainly  not the\tland bearing  R.S. No. 3862 and 3863
\nalthough counsel  for the respondents made an attempt before
\nus to  show that  the said land formed the western boundary.
\nBut there  is nothing  on record  to lend  credence to\tthis
\nbelated submission.  It was  never the\tcase of\t the parties
\nthat the plaintiff had no other property apart from R.S. No.
\n3862 and 3863.\n<\/p>\n
     Second, the  SIET\tpurchased  under  Ex.  P7  the\tland
\nmeasuring 38  grounds. Within  a couple of months thereafter
\nthe SIET  conveyed under  the deed  of exchange\t Ex. P8,  43
\ngrounds 1324  sq. ft. If one prefers to go yet further back,
\nthe Rani of Vuyyur purchased only 35 grounds 1989 sq. ft. It
\nwas the\t same property\twhich was the subject matter of sale
\nunder Ex.  P7 and later the subject matter of exchange under
\nEx. P8.\t One fails  to understand  how that  waxing could be
\npossible without an attempt to grab the adjacent property
\n     Thirdly, the  plaintiff has  come forward with specific
\ncase that  her land  was encroached by the defendants in the
\nearly part of January-February 1954. That has been denied in
\nthe written  statement filed  by the  Secretary of the SIET.
\nThe Secretary  was examined as D.W. 3. He was a star witness
\nin support  of the defendants case. The sale deed Ex. P7 was
\nin his\tname. The  exchange deed  EX. P8 was executed by him
\nalong with treasurer of the SIET. D.W. 3 in his evidence has
\ngiven a\t go-by to  his pleading.  He stated  that he did not
\nexamine the  title deeds  of his  property. He\tdid not know
\nanything about\tthe contents  of the title deeds except in a
\ngeneral way.  He did  not take\tany responsibility  for\t any
\nportion of the sale deed in favour of the SIET. He said that
\nthe exchange  deed was\tgiven to  him by the Chairman of the
\nSIET and  he did  not actually draft it. He also stated that
\nhe could  not explain  how the property which was 38 grounds
\nat the time of purchase under Ex. P7 came to be described as
\n43 grounds in Ex. P8, although he later said that Ex. P8 was
\nwritten after  measurement and\tdemarcation of the property.
\nWe do  not know whether he feigned his ignorance, or whether
\nhe was\ttrying to  be ingenious. We could only conclude that
\nhe was fair enough and ingenuous. He stated before the Court
\nthat he\t did not  investigate the  title and  could not take
\npersonal responsibility\t for the  statement he\tmade in\t the
\nwritten statement  to the  effect that the plaintiff was not
\nin possession of the property. This was the final blow
\n730<\/span>
\nto the\tdefendants case\t which the Division Bench has failed
\nto A appreciate.\n<\/p>\n
     The force\tof the\tsecond\tcontention,  urged  for\t the
\nappellant cannot  also be  gainsaid. We\t have already stated
\nthat the suit property was admittedly located in a low lying
\narea with  a  deep  pit\t where\twater  stagnated  making  it
\nincapable of  use and  enjoyment. The  sale deed  Ex. P2  by
\nwhich the  property was\t purchased by  Nagappa described the
\nproperty as  a pit.  It has  come from the evidence that the
\nland was  8  feet  below  the  road  level.  It\t was  called
\n“Pallam”. There\t would be  water in  the “Pallam” during the
\nrainy reason  making it\t a pond (see the evidence of P.W. 1)
\nIt was\talso admitted  before the  trial judge that the suit
\nproperty was low Lying where water did stagnate. The learned
\njudge,\thowever,   found  it   unnecessary  to\t draw  legal
\npresumption of possession because on other material he found
\nthe defacto possession with the plaintiff till 1954. The law
\nwith regard  to\t possession  of\t such  land  is\t clear.\t The
\npossession continues  with the title holder unless and until
\nthe defendant  acquires title  by adverse  possession. There
\nwould be  no continuance of adverse possession when the land
\nremains submerged  and\twhen  it  is  put  out\tof  use\t and
\nenjoyment. In such a case the party having title could claim
\nconstructive possession\t provided the  title  had  not\tbeen
\nextinguished by\t adverse possession  before  the  last\tsub-
\nmergence.  There  is  no  difference  in  principle  between
\nseasonal submersion  and one which continues for a length of
\ntime. This  view has  been applied  by the  Privy Council in
\nBasanta Kumar  Roy v. Secretary of State, ILR Vol. 44 (1917)
\nCalcutta series 858 at 871-2 where Lord Summer observed:\n<\/p>\n
\t  “The Limitation  Act<\/a> of  1877 does  not define the
\n\t  term\t“dispossession”\t but  its  meaning  is\twell
\n\t  settled. A  man may  cease to use his land because
\n\t  he cannot use it, since it is under water, he does
\n\t  not\tthereby\t   discontinue\t  his\t possession:
\n\t  constructively   it\tcontinues,   until   he\t  is
\n\t  dispossessed;\t and,  upon  the  cessation  of\t the
\n\t  dispossession before\tthe lapse  of the  statutory
\n\t  period, constructively  it revives.  “There can be
\n\t  no discontinuance by absence of use and enjoyment,
\n\t  when the land is not capable of use and enjoyment”
\n\t  (Per Cotton,\tL.J. in\t Leigh v. Jack (1). It seems
\n\t  to follow  that there\t can be\t no  continuance  of
\n\t  adverse possession,  when the\t land is not capable
\n\t  of use  and enjoyment,  so long  as  such  adverse
\n\t  possesion  must   rest  on   de  facto   use\t and
\n\t  occupation. When  sufficient time  has elapsed  to
\n\t  extinguish the  old title and start a new one, the
\n\t  new owner’s posses-\n<\/p><\/blockquote>\n
731<\/span><\/p>\n
\t  sion of  course continues  untill there  is  fresh
\n\t  dispossession, and revives as it ceases
\n\t       In the  case of\tSecretary of State for India
\n\t  v. Krishnamoni Gupta, [1902] ILR 29 Cal 5 18 their
\n\t  Lordships’ Board  applied this  view\tto  a  case,
\n\t  where a  river shifting  its course  first in\t one
\n\t  direction and\t then  in  the\topposite  direction,
\n\t  first exposed\t certain submerged  lands, of  which
\n\t  the Government  took possession,  and then after a
\n\t  few  years   flooded\tthem   again.  No   rational
\n\t  distinction can be drawn between that case and the
\n\t  present one, where the reflooding was seasonal and
\n\t  occurred for\tseveral months\tin each year. It was
\n\t  held that  when  the\tland  was  re-submerged\t the
\n\t  possession of\t the Government determined, and that
\n\t  while it  remained submerged,\t no possession could
\n\t  be deemed  to\t continue  so  as  to  be  available
\n\t  towards the  ultimate acquisition of title against
\n\t  the true owner.”<\/p><\/blockquote>\n
     These  principles,\t  in  our   opinion,   are   equally
\napplicable to  the present  case. The  plaintiff has  proved
\ntitle to  the property.\t The defendants\t have  not  acquired
\ntitle by  adverse possession.  The property  as described in
\nthe sale  deed Ex.  P2 was a vacant land fetching no income.
\nIt  was\t  called  “Pallam”   or\t pond  that  was  seasonally
\nsubmerged.  The\t  entire  land\t might\tnot   be  seasonally
\nsubmerged, but it makes little difference in the position of
\nlaw. “As  a general  rule  possession  of  part\t is  in\t law
\npossession of the whole, if the whole is otherwise vacant. ”
\nSarkar on Evidence Vo. 2 13th Edn. p. 110.\n<\/p>\n
     In the  view of  the foregoing discussion, we allow the
\nappeal with  cost, set\taside the  judgment of\tthe Division
\nBench and restore that of the learned single judge.\n<\/p>\n
N.P.V.\t\t\t\t\t     Appeal allowed.\n732<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M.S.Jagadambal vs Southern Indian Education Trust & … on 2 November, 1987 Equivalent citations: 1988 AIR 103, 1988 SCR (1) 722 Author: K Shetty Bench: Shetty, K.J. (J) 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-270098","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM.S.Jagadambal vs Southern Indian Education Trust & ... on 2 November, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-s-jagadambal-vs-southern-indian-education-trust-on-2-november-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.S.Jagadambal vs Southern Indian Education Trust & ... on 2 November, 1987 - 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