Appeal No 178 of 1955
Appeal by special leave from the judgment and decree dated December 3 1951 of the High Court of Judicature at Madras in Second Appeal No 766 of 1947 against the decree dated November 19 1946 of the District Court of Anantapur in Appeal No 130 of 1945 arising out of the decree dated January 31 1945 of the Court of Subordinate Judge Anantapur in Original Suit No 10 of 1944
M C Setalvad Attorney General of India P Ram Reddy K Sundararajan and M section K Aiyangar for the appellant
C K Daphtary Solicitor General of India and K R Chaudhury for the respondent
December 5
The Judgment of the Court was delivered by JAGANNADHADAS J
The plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one third share in the suit properties and for partition and recovery of that share
The suit was dismissed as having been barred by limitation and adverse possession
On appeal the District Judge reversed the decision and decreed the suit
High Court maintained the decree of the District Judge on second appeal
Hence this appeal before us on special 197 leave by the first defendant in the action who is the appellant before us
The main question that arises in the appeal is whether the plaintiff has lost his right to a one third share in the suit property by adverse possession
The property in suit belonged to one Venkata Reddy
He died an infant on Augutst 25 1927
At that time the properties were in the possession of the matemal uncles of the father of the deceased Venkata Reddy
One Hanimi Reddy an agnatic relation of Venkata Reddy filed a suit OS No 26 of 1927 for recovery of the properties from the said matemal uncles and obtained a decree therein on March 15 1929
A Receiver was appointed for the properties in February 1928 during the pendency of the suit and presumably the properties were in his possession
This appears from the decree which shows that it directed the Receiver to deliver possession to the successful plaintiff in that suit  Hanimi Reddy obtained actual possession of these properties on January 20 1930 and continued in possession till he died on August 16 1936
The first defendant in the present action who is the appellant before us is a son of the brother of Hanimi Reddy and came into possession of all the properties as Hanimi Reddy s heir
The respondent before us is the plaintiff
The present suit was brought on the allegation that the plaintiff and the second defendant in the suit his brother were agnatic relations of Venkata Reddy of the same degree as Hanimi Reddy and that all the three were equal co heirs of Venkata Reddy and succeeded to his properties as such on his death
It was alleged that though Hanimi Reddy filed the prior suit and obtained possession of the properties thereunder he did so as one of the do heirs with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants in common but that the first defendant who came into possession on the death of Hanimi Reddy denied the title of the plaintiff and his brother in or about the year 1940
The plaint in the present action was filed originally in the District Munsif s Court on October 23 1941 and was ordered 198 to be returned for presentation to the District Judge s Court on November 30 1942
It was actually re presented in that Court on December 2 1942
One of thequestions raised in the suit was that the suit was barred by limitation on the ground that it must be taken to have been ingtituted not on October23 1941 but on December 2 1942
This plea was upheld by the trial Court
On first appeal the District Judge held that the plaintiff is entitled to the benefit of a 14 of the Limitation Act and that the suit must be taken as having been instituted on October 23 19419 and is therefore in time
He accordingly decreed the suit
In the High Court the question as to whether the plaintiff was entitled to the benefit of
14 of the Limitation Act though raised was not finally decided
It was held that the possession of Hanimi Reddy was not adverse to the plaintiff and that accordingly he was entitled to the decree as prayed for
The question as to the non availability of the benefit of section 14 of the Limitation Act to the plaintiff in the present suit has not been urged before us and the finding of the District Judge that the plaint must be taken to have been validly presented on October 23 1941 stands
That date must therefore be taken to be the commencement of the action for the purposes of this appeal
It will be noticed that this date is more than fourteen years from the date when the succession opened to the properties of Venkata Reddy on August 25 1927 but is less than twelve years after Hanimi Reddy obtained actual possession in execution of his decree on January 20 1930
The contention of the learned Attomey General for the appellant first defendant is that the possession of Hanimi Reddy was adverse that the plaintiff as well as the second defendant lost their right by the adverse possession of Hanimi Reddy and his successor the first defendant and that for this purpose not only the period from January 20 1930 up to October 23 1941 is to be counted but also the prior period during the pendency of Hanimi Reddy s suit when the Receiver was in possession of the suit properties
It is the
validity of 199 these two parts of the argument which has to be considered
It will be convenient to consider in the first instance whether or not the possession of Hanimi Reddy from January 20 1930 up to the date of his death in 1936 was adverse to his co heirs
The facts relevant for this pur pose are the following
At the date when Venkata Reddy died his properties were in the custody of the two maternal uncles of his father
Hanimi Reddy filed his suit on the allegation as already stated above that he was the nearest agnatic relation alive of the deceased minor Venkata Reddy and as his next rightful heir to succeed to all the estate movable and immovable of the said minor set forth in the schedules thereto
He appended a genealogical tree to his plaint which showed his relationship io Venkata Reddy through a common ancestor and showed only the two lines of himself and Venkata Reddy
Plaintiff and the second defendant belong to another line emanating from the same common ancestor but that line was not shown and the plaintiff and second defendant were ignored
The first defendant in the present suit did not admit the relationship of plaintiff and second defendant in his written statement
He disputed that the father of the plaintiff and second defendant was descended from the common ancestor either by birth or by adoption as shown in the genealogical table attached to the present plaint
It is possible that this may have been the reason for Hanimi Reddy ignoring the plaintiff and the second defendant in his suit
However this may be at the trial in this suit it was admitted that the plaintiff and the second defendant are the agnatic relations of Venkata Reddy of the same degree as Hanimi Reddy
The defendants in the earlier suit who were in possession on that date claimed to retain possession on behalf of an alleged illatom sonin law of Venkata Reddy s father a son of the second defendant therein
It may be mentioned that in that part of the country Andhra an illatom son in law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural born son This 200 claim appears to have been negatived and the suit was decreed
During the pendency of the suit a Receiver was appointed in February 1928
He presumably took possession though the date of his taking possession is not on the record
The decree in that suit dated March 15 1929 is as follows This Court doth order and decree that plaintiff do recover possession of immovable property and movables in the possession of the Receiver
 It is in the evidence of the first defendant himself as DW I that the properties were taken possession of by Hanimi Reddy on January 20 1930
The plaintiff examined himself as PW 1 to substantiate the case as set out in his plaint that he and the second defendant and Hanimi Reddy were enjoying the properties jointly as tenants in common
The relevant portion of his evidence is as follows Annu Reddy Hanimi Reddy uncle of defendant  and myself filed 0
section No 26 of 1927 District Court Anantapur same as OS No 24 of 1928 Sub Court Anantapur for the properties of the deceased Venkata Reddy
As Hanimi Reddy was the eldest member he was attending to the conduct of that suit
I was also coming to Court along with him
The suit ended in our favour
Hanimi Reddy took possession through Court after the decree in the year 1930
Since then both Hanimi Reddy and myself have been in joint possession and enjoyment of the same
 In cross examination he said as follows I told Hanimi Reddy that I would also join him as a party in OS 24 of 1928
He said there was no need for me to join and that he would give my share to me   
I did nut file any application to be impleaded as a defendant   
I have nothing in writing to show that Hanimi Reddy was giving me any produce from the suit lands
 The first defendant filed the plaint judgment and decree in Hanimi Reddy s suit as also pattas cist receipts and lease deeds taken by Hanimi Reddy in his time
With reference to this evidence the trial Court found as follows 201 The documents filed on behalf of the first defendant completely establish that Hanimi Reddy filed the suit in his individual capacity and obtained possession thereof
There is nothing to indicate that either the plaintiff or the second defendant took any interest in those proceedings   
There is no evidence of Hanimi Reddy having given any produce to the plaintiff or to the second defendant  
The plaintiff and the second defendant have been excluded from participation of profits to their knowledge since 1930
 The learned District Judge found on appeal when the same was remanded to him for a finding by the High Court as follows I have no hesitation in holding that the plaintiff had nothing to do with the institution or conduct of the suit 0
section No 24 of 1928 on the file of the Sub Court of Anantapur and that he never had any actual joint enjoyment of suit properties with the late D Hanimi Reddy or the first defendant
 He has not given a finding as to whether the non participation of the profits by the plaintiff and the second defendant was in the nature of exclusion to their knowledge
But there are some admitted and relevant facts brought out in evidence which are significant
The present evidence as well as the  plaint in the earlier suit of 1927 show clearly that all the parties including Hanimi Reddy were residents of village Mamuduru
All the suit properties are situated in that village itself as appears fromthe schedules to the plaint in the earlier suit
Hanimi Reddy and the plaintiff were fairly closely related as appears from the plaintiff s admission as follows My brother in law who is also the nephew of Hanimi Reddy was staying with Hanimi Reddy
My father in law and defendant No 1 s father in law is the same
 On these facts the question that arises is whether in law the possession of Hanimi Reddy from January 20 1930 onwards was adverse to the plaintiff and the second defendant
26 202 Now the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario
See Secretary of State for India vs Debendra Lal Khan1
The possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the competitor
Se Radhamoni Debi vs Collector of Khulna2
But it is well settled that in order
to establish adverse possession of one co heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties
Ouster of the non possessing co heir by the co heir in possession who claims his possession to be
adverse should be made out
The possession of one co heir is considered in law as possession of all the co heirs
When one co heir is found to be in possession of the properties it is presumed to be on the basis of joint title
The coheir in possession cannot render his possession adverse to the other co heir not in possession merely by any secret hostile animus on his own part in derogation of the other co heir s title
See Corea vs Appuhamy3
It is a settled rule of law that as between co heirs there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster
This does not necessarily mean that there must be an express demand by one and denial by the other
There are cases which have held that adverse possession and ouster can be inferred when one co heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir  takes no steps to vindicate his title
Whether that line of cases is right or wrong we need not pause to consider
It is sufficient to notice that the Privy Council in N Varada Pillai vs Jeevarathnammal4 q uotes apparently with approval a passage from Culley vs Deod Taylerson5 which indicates that such a situation may Tell lead to an inference of 1 1933 LR 6i IA 78 82
2 1900 LR 27 IA 136 140
3 4 AIR 1919 PC 44 47
5 3 P  D 539 52 RR 566
203 ouster if other circumstances concur
See also Govindrao vs Rajabai1
It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co heir by his adverse possession
In the present case there can be no doubt that Hanimi Reddy obtained sole possession of the suit properties after the death of Venkata Reddy on the basis of an action against third parties in which he claimed to be the sole nearest male agnate having title to all the properties
After obtaining possession he was in continuous and undisputed possession of the properties till his death enjoying all the profits thereof
No doubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title he being one of the co heirs
But the plaint in the suit of 1927 and the decree therein render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignoring his coheirs
It is urged that knowledge of the assertion of such exclusive title averred in a plaint cannot be imputed to other co heirs who are not parties to the suit
But in this case it is not difficult on the evidence to say that the plaintiff and the second defendant must have been fully aware at the time of the nature of the claim made by Hanimi Reddy in the prior litigation and on the basis of which he obtained possession
That knowledge is implicit in the very case that they have put forward in the present plaint
Their case is that the prior suit was brought by Hanimi Reddy with the consent of the plaintiff and the second defendant and on their behalf
No doubt that specific case has been found against them and that finding is yes judicata between the parties
But there is no reason why the admission as to the knowledge of the nature of the litigation and the contents of the plaint which such a case necessarily implies should not be attributed at least to the present plaintiff
It appears reasonable to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of Venkata Reddy has been constrained to put 1 A I R 204 forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf
It is significant that the plaintiff has remained silent with out asserting his right during Hanimi Reddy s lifetime and comes forward with this suit after his death rendering it difficult to ascertain whether the fact of Hanimi Reddy completely ignoring the existence of the plaintiff and the second defendant as co heirs was not in denial of their relationship and consequently of their title as co heirs to their knowledge
The fact that even so late as in the written statement of the first defendant relationship is denied may be indicative as to why Hanimi Reddy ignored the plaintiff and the second defendant and why they remained silent
The learned Judges of the High Court thought that there was nothing to show that Hanimi Reddy was aware that plaintiff and second defendant had any rights in the properties as co heirs
This assumption is contrary to the admission of mutual knowledge of each other s rights implicit in the plaintiff s case that Hanimi Reddy brought his suit with the consent of the plaintiff
In such circumstances and especially having regard to the fact that both the plaintiff and Hanimi Reddy were living in the same village and the plaintiff has put forward a false explanation to account for  his inaction a Court of fact might well have inferred ouster
Sitting on an appeal in special leave however we do not feel it desirable to decide the case on this ground
We therefore proceed to consider the further question that arises in the case viz whether the Receiver s possession can be tacked on to Hanimi Reddy s possession on the assumption that Hanimi Reddy s possession on and from January 209 1940 was adverse to the plaintiff
The learned Attorney General urges that prior possession of the Receiver pending the suit must be treated as possession on behalf of Hanimi Reddy with the animus of claming sole and exclusive title disclosed in his plaint
In support of this contention he relies on the well known legal principle that when a Court takes possession of properties through its Receiver such Receiver s possession is that of all the 205 parties to the action according to their titles
See Kerr on Receivers 12th Ed p 153
In Woodroffe on the Law relating to Receivers 4th Ed at p 63 the legal position is stated as follows  The Receiver being the officer of the Court from which he derives his appointment his possession is exclusively the possession of the Court the property being regarded as in the custody of the law in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto
 But does this doctrine enable a person who was not previously in possession of the suit properties to claim that the Receiver must be deemed to have taken possession adversely to the true owner on his behalf merely because he ultimately succeeds in getting a decree for possession against the defendant therein who was previously in possession without title
A Receiver is an officer of the Court and is not a particular agent of any party to the suit notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit
To treat such Receiver as plaintiff s agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong doing to the Court and its officers
The doctrine of Receiver s possession being that of the successful party cannot in our opinion be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receiver s possession to his subsequent adverse possession
The position may conceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the Receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour
In such a case the question that would arise would be different viz whether the interim possession of the Receiver would be a dis continuance or abandonment of possession or interrupt
ion of the adverse possession
We are not concerned with it in this case and express no opinion on it
The matter may be looked at from another point of view
It is well settled that limitation cannot begin 206 to run against a person unless at the time that person is legally in a position to vindicate his title by action
Mitra s Tagore Law Lectures on Limitation and Prescription 6th Ed Vol1 Lecture VI at p 159 quoting from Angell on Limitation this Principle is stated in the following terms  An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right either under an openly avowed claim or under a constructive claim arising from the acts and circumstances attending the appropriation to hold the land against him who was in possession
Angell sections 390 and 398
It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession
 Consonant with this principle the commencement of adverse possession in favour of a person implies that person is in actual possession at the time with a notorious hostile claim of exclusive title to repel which the true owner would then be in a position to maintain an action
It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus
In the leading case of Agency Company vs Short1 the Privy Council points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor at p 798 as follows  There is no one against whom he the rightful owner can bring his action
 It is clearly implied therein that adverse possession cannot commence without actual possession which can furnish cause of action
This principle has been alsoexplained in Dwijendra Narain Roy vs Joges Chandra De2 at p 609 by Mookerjee J as follows  The substance of the matter is that time runs when the cause of action accrues and a cause of action accrues when there is in existence a person who can 1 2 AIR 1924 Cal
6oo 207 sue and another who can be sued 
The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief
The statute of limitation does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained
Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result
 In the present case the co heirs out of possession such as the plaintiff and the second defendant were not obliged to bring a suit for possession against Hanimi Reddy until such time as Hanimi Reddy obtained actual possession
Indeed during the time when the Receiver was in possession obviously they could not sue him for possession to vindicate their title
Nor were they obliged during that time to file a futile suit for possession either against Hanimi Reddy or against the defendants in Hanimi Reddy s suit when neither of them was in possession
It appears to us therefore that the adverse possession of Hanimi Reddy if any as against his co heirs could not commence when the Receiver was in possession
It follows that assuming that the possession of Hanimi Reddy from January 20 1930 was in fact adverse and amounted to ouster of the co heirs such adverse possession was not adequate in time by October 23 1941 the date of suit to displace the title of the plaintiff
It follows that the plaintiff respondent before us is entitled to the decree which he has obtained and that the decision of the High Court is in our view correct though on different grounds
It may be mentioned that objection has been raised on behalf of the respondents before us that the question of tacking on Receiver s possession was not in issue in the lower Courts and should not be allowed to be raised here
In the view we have taken it is unnecessary to deal with this objection
In the result the appeal is dismissed with costs
Appeal dismissed


Summary:
V died an infant in 1927 and H an agnatic relation
filed a suit for the recovery of the properties belonging to V which were in the possession of third parties on the ground that he was the sole nearest male agnate entitled to all the properties
During the pendency of the suit a Receiver was appointed for the properties in February 1928
The suit having been decreed H obtained possession of the properties from the Receiver on January 20 1930 and after his death in 1936 his nephew the appellant got into possession as His heir
On October 23 1941 the respondent brought the present suit for the recovery of a one third share of the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H that all the three were equal co heirs of V and that H obtained the decree and got into possession on behalf of all the co heirs
The appellant resisted the suit and contended that the respondent lost his right by the adverse possession of H and his successor and that for this purpose not only the period from January 20 1930 to October 23 1941 was to be counted but also the prior period when the Receiver was in possession of the properties during the pendency of H s suit
it was found that the respondent s case that H obtained the decree and got possession from the Receiver on behalf of the other co heirs was not true  Held that the respondent did not lose his right by adverse possession
Even assuming that H s possession from January 20 1930 was adverse and amounted to ouster of the other co heirs such adverse possession was not adequate in time to displace the title of the respondent and the period during which the Receiver was in possession could not be added because 1 the Receiver s 196 possession could not be tacked on to H s possession as a Receiver is an officer of the Court and is not the agent of any party to the suit and notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit he could not be considered as the agent of such party with  the animus of claiming sole and exclusive title with the view to initiate adverse possession  and 2 during the time of the Receiver s possession the respondent could not sue H and limitation could not therefore run against him
The possession of one co heir is considered in law as possession of all the co heirs and in order to establish adverse possession ouster of the non possessing co heir should be made out and as between them there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster