Case: Mamidi Venkata Satyanarayana Manikyalarao And Another Vs. Mandela Narasimhaswami And Others

1. In a certain money suit, being Small Cause Suit No. 9 of 1953, a decree had been passed against Narasimhaswamy and his four sons who were members of a Mitakshara Hindu joint family. In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successors-in-interest are the appellants. The father Narasimhaswamys share had not been put up for sale because an application for his adjudication as insolvent was then pending. The sale to Sivayya was duly confirmed. Thereafter Sivayya sold the properties purchased by him at the auction to one Prakasalingam. On November 6, 1939, an order was made under O. 21, Rr. 35 (2) and 96 of theCode of Civil Procedure for delivery of joint possession of the properties purchased to Prakasalingam along with the members of the joint family in actual possession. This order was duly carried out and possession was delivered to Prakasalingam by publishing that fact by beat of drum as prescribed in these rules. Subsequently, Prakasalingam retransferred the properties to Sivayya2. On October 16, 1951, Sivayya filed the suit out of which this appeal arises, against the then members of the joint family whose number had by that time increased, and various other persons holding as alienees from them, asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession. The trial Court decreed the suit but held that Sivayya was not entitled to a 4/5th share but only a 2/3rd share because before the decree a 5th son had been born to Narasimhaswamy who had not been made a party to the suit or the execution proceedings and whose share had not consequently passed under the auction sale. Some of the defendants appealed to the High Court of Andhra Pradesh from this judgment. The High Court allowed the appeal on the ground that the suit was barred by limitation under Art. 144 of Schedule I to the Limitation Act. Sivayya had filled a cross objection in the High Court on the ground that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without a discussion of its merits in view of its decision on the question of limitation. Sivayya having died pending the appeal in the High Court, the appellants as his successors-in-interest, have come up to this Court in further appeal under Art. 133 of the Constitution3. Various questions had been raised in the trial Court but only two survive after its decision. They are, whether the suit was barred by limitation and whether Sivayya was entitled to a 4/5th share4. On the question of limitation, two articles of the Act were pressed for our consideration as applicable to the case. They are Arts. 144 and 120. We consider it unnecessary to decide in this case which of the two articles applies for, in our view, the suit was not barred under either5. As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer.That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession " would date from the period when a specific allotment was made in his favour": Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh. 1954 SCR 177     at p. 188: (AIR 1953 SC 487   at p. 491). It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession.Support for this view may be found in some of the observations in the Madras Full Bench case of Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811  : (AIR 1916 Mad 990   (2) (FB)6. In the case in hand the learned Judges of the High Court thought that the applicability of Art. 144 to a suit like the present one was supported by the decision of the Judicial Committee in Sudarsan Das v. Ram Kirpal Das, 77 Ind App 42: (AIR 1950 PC 44  ). We feel considerable doubt that the case furnishes any assistance. It held that Art. 144 extends the conception of adverse possession to include an interest in immovable property as well as the property itself. In that case a purchaser of an undivided share in a property which was not coparcenary property, had obtained possession of that share and he was held to have acquired title to it by adverse possession. That was not a case of a person who was not entitled to possession. We are not now concerned with adverse possession of an interest in property7. Having expressed our difficulties on the matter let us proceed on the assumption without deciding it, that Art. 144 is applicable. Even so, it seems to us that the suit is not barred. It is not in dispute that in order that the suit may be barred under the article the defendant must have been in uninterrupted possession for twelve years before the date of the suit. Now, in the present case that was not so.By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. Time has, therefore, to commence to run from that date and so considered. the suit having been brought within twelve years of that date, it was not barred under that article. That would follow from the case of Sri Radha Krishna Chanderji v. Ram Bahadur, AIR 1917 PC 197 (2), where it was held that delivery of formal possession also interrupted the continuity of adverse possession8.It was, however, said that the order for delivery of possession made in the present case was a nullity because Sivayya and his transferee who had purchased an undivided share in coparcenery property were not entitled to any possession at all. We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity. It is not a case where the order was without jurisdiction. It was a case where the learned Judge making the order had, while acting within his jurisdiction, gone wrong in law. Such an order has full effect if it is not set aside, as it was not in this case.Yelumalai Chetti v. Srinivasa Chetti. ILR 29 Mad 294, to which we were referred, does not support the contention that the order was a nullity. There a purchaser of an undivided share in coparcenery property at an execution sale had applied for possession under S. 318 of theCode of Civil Procedure of 1882 which corresponds to O. 21, R. 95 of the present Code. That application was dismissed as barred by limitation. Later, the purchaser who had subsequently acquired the interest of the other coparceners in the property under a private sale, filed a suit for possession of the whole. It was contended that the suit was barred under S. 244 of the old Code (-S. 47 of the present Code) as the purchaser could only proceed by way of execution. In dealing with that contention it was said that though the purchaser of an undivided share in coparcenery property was only entitled to ask for a partition, it was not competent to a Court on a mere application for execution by a purchaser of such a share at a Court sale, to order a partition and, therefore, the dismissal of the application under S. 318 of the old Code had no effect by way of res judicata on the second suit for possession. This case said nothing about the legality of an order under O. 21, Rr.35, 95 or 969. It seems to us that the question of adverse possession is one of fact. If the person against whom adverse possession is set up, shows that he had in fact obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise, Prakasalingam did obtain possession and this was an interruption of the adverse possession by the respondents. In respect of the present suit time under Art. 144 must, therefore, commence from that interruption.

Reasoning:
13. We then turn to Art. 120. In Bai Shevantibai v. Janardan R. Warik, AIR 1939 Bom 322  , it has been held that to a suit like the present, this is the article that applies. Learned counsel for the respondents himself contended that this was the appropriate article to be applied. This article applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues. Learned counsel for the respondents relied on the observation in Shevantibais case. AIR 1939 Bom 322  ,that in a suit like the present one, the period of limitation under Art. 120 commences to run from the date of the sale. This the case no doubt held, but we think in that respect it did not lay down the law correctly. It has been held by this Court in Mt. Rukhmabai v. Laxminarayan (1960) 2 SCR 253  : (AIR 1960 SC 335  ) and C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808  , that the right to sue accrues for the purpose of Article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it.Now whatever the nature of the plaintiffs right in the present case, there is nothing to show that that right was ever challenged in any way by the respondents. It is impossible, therefore, to hold that his suit was barred under Art. 12014. The result is that the suit was not barred whether Art. 144 or Art. 120 applied to it15. It remains now to deal with the cross-objection. We do not think that it has any merit. Both the Courts below have held that what Sivayya purchased at the auction sale was the share of the four sons of Narsimhaswamy in the joint family properties. At the date of the auction sale that share which was originally 4//5th had been reduced to 2/3rd by the birth of another son, Venugopal, to Narsimhaswamy who had not been made a party either to the suit or the execution proceedings. It is irrelevant to enquire whether after his birth the fifth sons share could be proceeded against in the execution of the decree in suit No.9 of 1933. It is enough to say that was not in fact done. What was purchased at the execution sale was only the shares of Venugopals four brothers at the date of the sale and this was 2/3rd. That being so, we think Sivayya was not entitled to get Venugopals 1/6th share also allotted to him in the partition suit. The cross-objection must fail. We may add that no claim has been made against Narsimhaswamys share whose insolvency once ordered, appears subsequently to have been annulled.