Case: Gurbinder Singh And Another Vs. Lal Singh And Another

Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her lifetime. That being so, Art. 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which Art. 142 applied. No doubt, there, on behalf of the plaintiff-appellant it was argued on the authority, of Trustees, Executors and Agency Co. Ltd. v. Short (1888) 13 AC 793, 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 Punnayyas death and Subbarayudus taking possession in his own right, however, minute the interval may be and that except in the case of succession or devolution all other cases would fall within the principle enunciated in Agency Co.s case (1888) 13 AC 793. The learned Judges did not accept the contention but relying upon the decision in Willis v. Earl Howe (1893) 2 Ch 545, and a passage in Dart on Vendors and Purchasers, Vol. 17th Edn. p. 474 held that the suit was barred by time. It may be pointed out that on Punnayyas 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 Subbarayudus enjoying the properties after Punnayyas 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 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 v. Ramasubramania Ayyar, AIR 1935 Mad 449 :"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.s case (1888) 13 AC 793, 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 any ceremony in order to rehabilitate himself. No new departure is necessary: The possession of the intruder; ineffectual for the purpose of 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 Lordships 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." 10. 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 Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued" 11. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. 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 KaurTherefore, 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 Rajas position and got the benefit of the Rajas adverse possession. Similarly the appellants who had pre-empted these lands under the decree obtained against Kehar Singh got advantage not only of the Rajas adverse possession but also of Kehar Singhs. The sum total of the adverse possession of these three persons at the date of the respondents suit would, however, be less than 12 years and so the respondents suit could not be said to be barred by Art. 144 if the starting point of limitation is taken to be some day in October, 1938From 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 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 v. Ramasubramania Ayyar, AIR 1935 Mad 449   :"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."10. 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 Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued"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.