Appeal No 431 of 1963
Appeal from the judgment and decree dated May 21 1958 of the Punjab High Court in Civil Regular Second Appeal No 263 P of 1952
Tarachand Brijmohanlal for the appellants
BRL lyengar SK Mehta and KL Mehta for the respondents
The Judgment of the Court was delivered by Mudholkar J
The only question for consideration in this appeal by certificate from the High Court of Punjab is whether the suit for possession instituted by the respondents Lal Singh and Pratap Singh is within time
According to the appellants the suit is governed not by article 141 of the Limitation Act 1908 9 of 1908 as held by the High Court but either by article 142 or by article 144 and is on that basis barred by time
While it is conceded on behalf of the respondents that the suit is not governed by article 141 it is contended that it is governed by article 144 and not by article 142 and is within time
In order to appreciate the contentions it is necessary to set out the relevant facts which are no longer in dispute
Raj Kaur was in possession of 851 kanals 18 marlas of land situate in village Dhaipai in the former State of Faridkot
Out of this land 481 kanals 7 marlas was in her possession as occupancy tenant the landlord being the Raja of Faridkot while the remaining land was held by Smt
Raj Kaur as Adna Malik the Aala malik again being the said Raja of Faridkot
In Samvat 1953 AD1896 Smt
Raj Kaur who had two daughters Prem Kaur and Mahan Kaur adopted the former s son Bakshi Singh and put him in possession of the whole of the land
Bakshi Singh transferred part of the land to Pratap Singh second son of Mahan Kaur who is respondent No 2 in the appeal
Mahan Kaur had one more son Lal Singh and he is respondent No 1 in this appeal
In the year 1915 the Raja of Faridkot filed a suit against Bakshi Singh and Raj Kaur in the court of Sub Judge Faridkot for a declaration that the adoption of Bakshi Singh was invalid
This suit was decreed on February 9 1916
Raj Kaur died on August 14 1930
On February 19 1934 the Raja filed two suits against Bakshi Singh and Pratap Singh for possession of the aforementioned lands one pertaining to the land of which Raj Kaur was occupancy tenant and the other for that of the land of which she was Adna malik
These suits were decreed on March 12 1938 and in execution of the decrees obtained in these suits the Raja 65 took possession of the entire land in October 1938
On April 7 1948 he sold the entire land along with some other land to one Kehar Singh for Rs 84357 5 0
Thereupon Gurbinder Singh and Balbinder Singh
who are the appellants before us filed a suit for pre emption of the land against Kehar Singh and obtained a decree in their favour
In execution of that decree they got possession of the land on June 22 1950
On October 20 1948 Mst
Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal heir of Raj Kaur against Kehar Singh and the Raja of Faridkot
Later she impleaded the appellants as defendants to that suit and discharged the Raja of Faridkot
On February 17 1950 Lal Singh respondent No 1 filed a suit for possession of the entire land against the Raja of Faridkot and Kehar Singh
To that suit he joined Prem Kaur and Pratap Singh as defendants
Later however Pratap Singh was transposed as a plaintiff
Both the suits were consolidated and were tried together
The suit of Prem Kaur was dismissed by the trial court but that of the respondents was decreed to the extent of half share in the property
Prem Kaur and the appellants preferred appeals before the District Court but that court dismissed both the appeals
A second appeal was taken by the appellants as well as by Prem Kaur to the High Court and cross objections were preferred by the respondents
The High Court dismissed these appeals as well as the cross objections
In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj Kaur
Their claim was resisted by the appellants on several grounds in the courts below
Before us however only one ground is pressed and that is the suit is barred by limitation
As already stated according to the appellants the suit is governed either by article 142 or by article 144 of the Limitation Act and not by article 141
Mr lyengar for the respondents
does not rely upon article 141 at all
He also contends that article 142 has no application and that the suit is governed by article 144 only
Mr Tarachand Brijmohanlal for the appellants also relied on article 144 in the alternative
In order that article 142 is attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or someone through whom the defendants claim or alternatively the plaintiff should have discontinued possession
It is no one s case that Lal Singh ever was in possession of the property
It is true that Pratap Singh was in possession of part of the property which particular part we do not know by reason of a transfer thereof in his favour by Bakshi Singh
In the present suit both Lal Singh and Pratap Singh assert their claim to property by success on in accordance with the rules contained in the dastur ul amal whereas the possession of Pratap Singh for some 66 time was under a different title altogether
So far as the present suit is concerned it must therefore be said that the plaintiffs respondents were never in possession as heirs of Raj Kaur and consequently article 142 would not be attracted to their suit
It is in these circumstances that we have to consider whether under article 144 the suit is barred by time
The starting point of limitation set out in col 3 of article 144 is as follows When the possession of the defendant becomes adverse to the plaintiff
To recapitulate the events
Raj Kaur died on August 14 1930 whereupon under dastur ul amal her daughters Prem Kaur and Mahan Kaur became entitled to the possession of the land
According to the appellants the daughters succeeding their mother took an absolute estate
Assuming that is so what would be the position As already stated Bakshi Singh and Pratap Singh were in possession of the entire land belonging to Raj Kaur
Ignoring for the time being their relationship with Raj Kaur what can be said is that they were adversely in possession to the true owners that is Prem Kaur and Mahan Kaur daughters of Raj Kaur as from August 14 1930
Before however they could perfect their title against Prem Kaur and Mahan Kaur the Raja instituted a suit for possession obtained a decree thereunder and actually entered into possession to the entire land in October 1938
Though the Raja obtained possession under a decree of the court he was in the eye of law nothing but a trespasser in so far as the heirs of Raj Kaur her daughters Prem Kaur and Mahan Kaur were concerned
Mahan Kaur had in fact died on July 13 1938 ie before the Raja obtained possession
Therefore it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October 1938
Kehar Singh who was a transferee from the Raja stood in the Raja s position and got the benefit of the Raja s adverse possession
Similarly the appellants who had preempted these lands under the decree obtained against Kehar Singh got advantage not only of the Raja s adverse possession but also of Kehar Singh section The sum total of the adverse possession of these three persons at the date of the respondent s suit would however be less than 12 years and so the respondents  suit could not be said to be barred by article 144 if the starting point of limitation is taken to be some day in October 1938
Mr Tarachand Brijmohanlal however advanced an interesting argument to the effect that if persons entitled to immediate possession of land are somehow kept out of possession may be by different trespassers for a period of 12 years or over their suit will be barred by time
He points out that as from the death of Raj Kaur her daughters through one of whom the respondents claim
were kept out of possession by trespassers and that from the date of Raj Kaur s death right up to the date of the respondents 67 suit that is for a period of nearly 20 years trespassers were in possession of Mahan Kaur s and after her death the respondents share in the land their suit must therefore be regarded  as barred by time
In other words the learned counsel wants to tack on the adverse possession of Bakshi Singh and Pratap Singh to the adverse possession of the Raja and those who claim through him
In support of the contention reliance is placed by learned counsel on the decision in Ramayya vs Kotamma1
In order to appreciate what was decided in that case a brief resume of the facts of that case is necessary
Mallabattudu the last male holder of the properties to which the suit related died in the year 1889 leaving two daughters Ramamma and Govindamma
The former died in 1914
The latter surrendered her estate to her two sons
The plaintiff who was a transferee from the sons of Govindamma instituted a suit for recovery of possession of Mallabattudu s property against Punnayya the son of Ramamma to whom Mallabattudu had made an oral gift of his properties two years before his death
Punnayya was minor at the date of gift and his eider brother Subbarayudu was managing the property on his behalf
Punnayya however died in 1894 while still a minor and thereafter his brothers Subbarayudu and two others were in possession of the property
It would seem that the other brothers died and Subbarayudu was the last surviving member of Punnayya s family
Upon Subbarayudu s death the properties were sold by his daughters to the third defendant
The plaintiffs appellants suit failed on the ground of limitation
It was argued on his behalf in the second appeal before the High Court that as the gift to Punnayya was oral it was invalid that consequently Punnayya was in possession as trespasser that on Punnayya s death his heir would be his mother that as Subbarayudu continued in possession Subbarayudu s possession was also that of a trespasser that as neither Subbarayudu nor Punnayya completed possession for 12 years they could not tack on one to the other and that the plaintiff claiming through the nearest reversioner is not barred
The contention for the respondents was that there was no break in possession so as to retest the properties in the original owners that Punnayya and Subbarayudu cannot be treated as successive trespassers and that in any event the real owner having been out of possession for over 12 years the suit was barred by limitation
The High Court following the decision of Mookerjee J in Mohendra Nath vs Shamsunnessa3held that time begins to run against the last full owner if he himself was dispossessed and the operation of the law of limitation would not be arrested by the fact that on his death he was succeeded by his widow daughter or mother as the cause of action cannot be prolonged by the mere transfer of title
It may be mentioned that as Mallabattudu had given up possession to Punnayya under an invalid gift article 142 of the Limitation Act was clearly attracted
The 1 Mad 370
2  164
68 sons of Govindamma from whom the appellant had purchased the suit properties claimed through Mallabattudu and since time began to run against him from 1887 when he discontinued possession it did not cease to run by the mere fact of his death
In a suit to which that article applies the plaintiff has to prove his possession within 12 years of his suit
Therefore so long as the total period of the plaintiff s exclusion from possession is at the date of the plaintiff s suit for a period of 12 years or over the fact that this exclusion was by different trespassers will not help the plaintiff provided there was a continuity in the period of exclusion
That decision is not applicable to the facts of the case before us
This is a suit to which article 144 is attracted and the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of this period he can avail of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent trespassers
In so far as the adverse possession of Bakshi Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her life time
That being so article 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which article 142 applied
No doubt there on behalf of the plaintiff appellant it was argued on the authority of Agency Co vs Short  that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession that on the death of Punnayya it must be taken that there was an interruption in the possession and that there was an interval between Punnayya s death and Subbarayudu s taking possession in his own right however minute the interval may be and that except in the case of succession or revolution all other cases would fall within the principle enunciated in Agency Co s case1
The learned Judges did not accept the contention but relying upon the decision in Willis vs Earl Howe2 and a passage in Dart on Vendors and Purchasers Vol
17th ed
p 474 held that the suit was barred by time
It may be pointed out that on Punnayya s death his mother would be the heir and that it was established in that case that she was living with his brother Subbarayudu and his other brothers
Subbarayudu would therefore be a presumptive reversioner on the death of his mother and there was evidence to show that she was a consenting party to Subbaryudu s enjoying the properties after Punnayya s death
It is under these circumstances that the High Court found it difficult to hold that there was a fresh trespass by Subbarayudu after the death of Punnayya
On the other hand according to them there was a continuity of possession because the person who continued to hold possession was the presumptive heir of the deceased
From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all
In the case before us what 11888 13 AC 793
2 69 is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh
The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers
As it has turned out the possession of the Raja though obtained under the decree of a civil court was in itself a trespass on the rights of the persons who were in law entitled to possession of property
Thus this is a case of one trespasser trespassing against another trespasser
There is no connection between the two and therefore in law their possession cannot be tacked on to one another
As pointed out by Varadachariar J in Rajagopala Naidu vs Ramasubramania Ayyar1
Further the doctrine of independent trespassers will come in only when the second man trespasses upon the possession of the first or the first man abandons possession
 Where it applies the principle laid down in Agency Co s1 case would apply and preclude the tacking of possession of successive trespassers
The following observations of Lord Macnaghten in that case are pertinent and run thus They are of opinion that if a person enters upon the land of another and holds possession for a time and then without having acquired title under the statute abandons possession the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place
There is no one against whom he can bring an action
He cannot make any entry upon himself
There is no positive enactment nor is there any principle of law
which requires him to do any act
to issue any notice or to perform my ceremony in order to rehabilitate himself
No new departure is necessary
The possession of the intruder ineffectual for the purpose or transferring title ceases upon its abandonment to be effectual for any purpose
It does not leave behind it any cloud on the title of the rightful owner or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant
There is not in their Lord ships  opinion any analogy between the case supposed and the case of successive disabilities mentioned in the statute
There the statute continues to run  because there is a person in possession in whose favour it is running
 This view has not been departed from in any case
At any rate none was brought to our notice where it has not been followed
Apart from that what we are concerned with is the language used by the legislature in the third column of article 144
The starting point of limitation there stated is the date when the possession of 1 ALR 70 the defendant becomes adverse to the plaintiff
The word defendant is defined in section 24 of the Limitation Act thus  defendant  includes any person from or through whom a defendant derives his liability to be used
No doubt this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons
There can be no jural relationship between two independent trespassers
Therefore where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period
An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession
In our opinion therefore the respondents  suit is within time and has been rightly decreed by the courts below
We dismiss this appeal with costs
Appeal dismissed


Summary:
One Mst
Raj Kaur was holding certain lands on different tenures under the Raja of Faridkot
She had two daughters
She adopted the son of one of them and put him in possession of all the lands
He transferred a part of the lands to the second respondent who was son of the other daughter of Raj Kaur
After Raj Kaur s dearth the Raja filed suits for possession of the land and in execution of the decree he obtained in those suits took possession of the entire land in October 1938
He then transferred the land but the transferee was dispossessed by the appellants in June 1950 in execution of a decree they obtained in a suit for preemption filed by them against the transferee
The second respondent s mother had died in 1938 and her sons the first and second respondents filed a suit for possession of the entire land in February 1950 as heirs of Raj Kaur but it was decreed only to the extent of their half share and the decree was affirmed by the High Court
In the appeal to this Court it was contended that the suit was governed either by article 142 or article 144 of the Indian Limitation Act 1908 and on either basis was barred by time
HELD i Article 142 would not be attracted to the suit
In order that the article may be attracted the plaintiff must initially have been in possession of the property and should have been dispossessed by the defendant or some one through whom the defendant claims or alternatively the plaintiff should have discontinued possession
It was no one s case that the first respondent was ever in possession of the property
As regards the second respondent s possession at one time of a part of the property it was by reason of a transfer by the adopted son
The claim in the instant case however was by succession under a different title altogether and so it must be held that the plaintiffs respondents as heirs of Raj Kaur were never in possession of the land
65H ii Article 144 was applicable to the suit but the suit was not barred by time
Adverse possession against the respondents started in October
1938 when the Raja took possession of the land
To that adverse possession could be added that of his transferee and that of the appellants who had preempted the lands under the decree obtained by them against the transferee
But the sum total of the adverse possession of all those persons at the date of the respondent s suit would be less than 12 years
The adverse possession of the adopted son could not be tacked on to the adverse possession of the Raja and those who claim through him because in a suit to which Art 144 is attracted the burden is on the defendant to establish that he was in adverse possession for 12 years before the date of suit and for computation of that period he can avail himself of the adverse possession of any person or persons through whom he claims but not the adverse possession of independent tres 64 passers
The starting point of limitation in article 144 is the date when the possession of the defendant becomes adverse to the plaintiff
The gist of the definition of the word defendant in section 24 of the Act is the existence of a jural relationship between the different persons referred to in the definition and there can be no jural relationship between two independent trespassers
66 F H 68C 70B
Ramayya vs Kotamma Mad 370 explained