ame 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 2871 of the Madras High Court in OSA No 37 of 1963
725 section Padmanabhan and ATM Sampath for the Appellant
A M Abdul Khadar Mrs R Ramachandran for Respondent No 1 section 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 OSA 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 RS No 3859 an extent of about 38 cawnie roughly about 9 grounds for Rs275
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 Rs2000 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 CS No 521960 which was tried on the original side of the Madras High Court
The suit was for recovery of the land purchased under exhibit 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
This entire land was sold to Rani of Vuyyur for Rs 10000 under exhibit P6 dated July 30 1940
In the schedule the property sold was described as RS No 38591 3859 2 and part of 38593
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
and it was marked yellow in the plan attached thereto
Under exhibit P7 dated December 24 1953 Rani of Vuyyur sold the property she purchased under exhibit P6 to SIET
The property was described as bearing RS No 38591 38592 and 38593 part and 3872 in Teynampet measuring about 38 grounds
In the schedule to exhibit 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
the extent mentioned in exhibit P7 was about 38 grounds
On February 11 1954 the SIET exchanged its land under exhibit P8 with the property belonging to the defandants 1 to 4 in the suit
exhibit P8 recited that the SIET was conveying an extent of 43 grounds 1324 sq
ft comprised in RS Nos
38591 38592 and 38593 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
in the Exchange deed exhibit 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 RS No 38594 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 vs 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 exhibit P6 of 1953 and exhibit 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 RS 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 RS No 3862 and 3863
Second the SIET purchased under exhibit P7 the land measuring 38 grounds
Within a couple of months thereafter the SIET conveyed under the deed of exchange exhibit P8 43 grounds 1324 sq
If one prefers to go yet further back the Rani of Vuyyur purchased only 35 grounds 1989 sq
It was the same property which was the subject matter of sale under exhibit P7 and later the subject matter of exchange under exhibit 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 DW 3
He was a star witness in support of the defendants case
The sale deed exhibit P7 was in his name
The exchange deed EX
P8 was executed by him along with treasurer of the SIET
DW 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 exhibit P7 came to be described as 43 grounds in exhibit P8 although he later said that exhibit 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 exhibit 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 PW 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 vs 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 LJ in Leigh vs 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 vs Krishnamoni Gupta 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 exhibit 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
NPV Appeal allowed


Summary:
 The Deputy Assessor and Collector of the Assessment and Collection Department of the Municipal Corporation of Delhi issued an order to the petitioners demanding payment of Rs1407328 as composite arrears of the property tax fire tax water tax scavenging tax and education tax
The petitioners moved this Court under Article 32 of the Constitution for the issuance of a writ of certiorari quashing the demand order
Disposing of the Writ Petition without expressing any opinion on the merits of the case and allowing liberty to the petitioners to file if so advised a writ petition before the High Court under Article 226 of the F Constitution the Court  HELD The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution
The relief prayed for in the petition is one which may be granted by the High Court
Any party aggrieved by the decision of the High Court can appeal to this Court
That some case involving the same point of law is pending in this Court is no ground for this Court to entertain a petition by passing the High Court
If the parties get relief in the High Court they need not come to this Court and to that extent the burden on this Court is reduced
This Court has no time today even to dispose of cases which have to be decided by it alone
A large number of cases have been pending in this Court for ten to fifteen years
If no fresh cases are filed in this Court thereafter this Court with its present strength of Judges may take more than 15 years to dispose of all the pending cases
If the cases which can be filed in the High Courts are filed there and not in this Court the work of this Court in its original Jurisdiction which is a time consuming process can be avoided and the time saved by this 733 Court by not entertaining the case which may be filed in the High Courts can be utilized to dispose of the old matters 734E H 735A E This Court will also have the benefit of the decisions of the High Courts when it deals with an appeal against such a decision
The High Courts have judges of eminence who have initiative skill and enthusiasm
Their capacity should be harnessed to deal with every type of cases arising from their respective areas which they are competent to dispose of
If the cases which may be filed in the High Courts are filed in this Court this will affect the initiative of the High Courts
The dignity majesty and efficiency of the High Courts should be preserved
The taking over by this Court of the work which the High Courts can handle may undermine the capacity and efficiency of the High Courts which should be avoided
735E F The hearing of a case at the level of a High Court is also more convenient from several angles and will be cheaper to the parties
That saves a lot of time too
It is easier for the clients to give instructions to the lawyers
There are eminent lawyers practising in the High Courts with wide experience in handling different kinds of cases
The lawyers there are fully aware of every legislation in their States
734G