Madras High Court
Charles Hereward Simpson And Ors. vs The Government Of Tamil Nadu ... on 14 December, 1988
Equivalent citations: (1989)1MLJ511
JUDGMENT Nainar Sundaram, J.
1. These two appeals out of the common judgment and separate decrees of the District Judge, Kanyakumari District at Nagercoil in O.S. Nos. 66 and 67 of 1986. The plaintiffs in the suits are the appellants. The defendants are the respondents. The plaintiffs are the children of one Charles Harold Simpson, who is no more. The two plaintiffs in O.S. No. 66 of 1986 are the sons and the three plaintiffs in O.S. No. 67 of 1986 are the daughters of Charles Harold Simpson. The pleadings of the parties in both the suits are based on common allegations. The plaintiffs in O.S. No. 66 of 1986 seek a declaration of title and a permanent injunction against the defendants in respect of the following properties.
(i) Old Survey No. 2917/1(part) -- acres 15527
(ii) Old Survey Nos. 2898/1(part)
and 2917/1(part) -- acres 36.73
Total -- acres 192.
According to the plaintiffs, the extent of acres 155.27 in item (i) was comprised in title deed No. 3 and the extent of acres 36.73 in item (ii) was comprised in title deed No. 15. These title deeds numbers 3 and 15 were the result of grants by the Dewan of Travancore Sirkar on behalf of the Travancore Sirkar, to Reverend John Cox, the ancestor of the plaintiffs; title deed No. 3 being dated 23.10.1866 and title deed No. 15 being dated 15.8.1867. The plaintiffs in O.S. No. 67 of 1986 seek declaration of title and permanent injunction in respect of two items of properties as Mows;
(a) old Survey Nos. 2917/1 (Part)
and 2898/1(Part) -- acres 73.68
(b) Old Survey No. 2917/1(Part) -- acres 4.17
Total -- acres 77.85
According to the plaintiffs in O.S. No. 67 of 1986, a total extent of acres 111.62 in Old Survey Nos. 2917/1 (part) and 2898(1)(part) was comprised in title deed No. 37 and the extent of acres 4.17 in Old survey No. 2917/1 (part) was comprised in title deed no. 94. These title deeds again, according to the plaintiffs, were the result of grants to Reverend John Cox, the ancestor of the plaintiffs, by the Dewan of Travancore on behalf of Travancore Sirkar; title deed No. 37 being of the date 4.3.1869 and title deed No. 94 being of the date 15.10.1875. Out of the total extent of 111.62, covered by title deed No. 37, and comprised in Old Survey Nos. 2917/1 (part) and 2898/1 (part) the plaintiffs in O.S. No. 67 of 1986 have sold away acres 37.94 to third parties and hence their claims are restricted to acres 73.68 with regard to this item(a).
2. The case of the plaintiffs runs as follows:
Reverend John Cox established a coffee estate on the properties, covered by the four title deeds. Permanent boundary marks and pathways were put up and maintained by him A bungalow was built and some building were also constructed for estate purposes. During The Years 1880-1883 a disastrous blight affected the entire coffee plantation and there was abolition of land tax for coffee lands by the Maharaja of Travancore by his Royal proclamation dated 1.10.1883. later Revered John Cox planted China-tea and cardamom of Mysore variety and other fruit-yielding trees like oranges, mangoes and jacks. Lemon-grass was cultivated by the heirs of Reverend John cox and they were distilling oil there from till about 1912. On the death of Reverend John Cox, his heirs, who inherited the properties covered by the title deeds, continued to enjoy the same as owners and ultimately the properties devolved on Mr. Charles Harold Simpson, the eldest grand-son of Reverend John Cox and the father of the plaintiffs, who become the absolute owner of these properties in 1921 and he was in possession and enjoyment of the same as absolute owner thereof from 1921 onwards. On 24.12.1969, there was an oral family arrangement amongst Mr. Charles Harold Simpson and his children, who were minors then, and the result of the oral family arrangement was the two sons the plaintiffs in O.S. No. 66 of 1986 were given the undivided shares of acres 192 comprised in title deeds numbers 3 and 15 and the three daughters the plaintiffs in O.S. No. 67 of 1986 were given the undivided shares of acres 115.79 comprised in title deeds numbers 37 and 94. The plaintiffs would claim that themselves and their predecessors in title have been in possessions and enjoyment of the properties continuously and without interruption for more than the statutory period and apart from deviation of title by the deeds, the plaintiffs claim to have prescribed title by adverse possession to the suit properties. The properties covered by the four title deeds lie outside lekkom 28, which is a registered private holding. According to the plaintiffs, Mrs. Anna Amy Cox grandmother of Mr. Charles Harold Simpson, purchased properties under a sale deed of the year 1059 M.E., and those properties were comprised in lekkom 28, lying west and south-west of the properties covered by the four title deeds. The plaintiffs rely on the proceedings in O.S. No. 88 of 1958, on the file of the District Munsif, Nagercoil, filed against the state of Tamil Nadu and its officers, which was a suit filed by Mr. Charles Harold Simpson for declaration of title of acres 856.50 (less 5 acres for which patta had been given) comprised in Survey Numbers 2898/2 and 3, 23902/1 and 2917/3 covered by 1050 M.E. Sale deed, and for a permanent injunction for the purpose of showing that survey numbers 2903, 2905, 2906, 2910 and 2911/1 and 2 were shown and located as forming part of 1050 M.E. sale deed properties. This reliance on those proceedings was to demonstrate that the case of the defendants that these were the survey numbers forming part of the properties covered by the title deeds and they were alienated, could not be accepted and will come within the mischief of the principles of res judicata and interpartes judgment. The proceedings in O.S. No. 88 of 1958 passed on to the first appellate stage in A.S. No. 164 of 1960, on the file of the District Judge, Kanyakumari at Nagercoil and to the second appellate stage in S.A. No. 266 of 1966. The plaintiffs in O.S. No. 67 of 1986 would also rely on the proceedings in O.S. No. 98 of 1980 on the file of the Subordinate Judge, Nagercoil, filed by the licence from these plaintiffs of an extent of acres 37.97 as comprised in property covered by title deed No. 37. That was a suit for declaration of title and for recovery of possession with a consequential injunction against the State of Tamil Nadu and the Forest Department and that suit was decreed. The plaintiffs would claim that they have effected valuable improvements in the suit-properties. The plaintiffs would state that the defendants despite the plaintiffs" right, title and interest in the suit-properties, have claimed them as forest-reserve and have issued the Notification under the Tamil Nadu Forest Act, 1882 and they are interfering with the possession of the plaintiffs by pulling down the boundary marks through the forest-guards.
3. When the Tamil Nadu (Transferred Territory) Ryotwari Settlement Act 30 of 1964 came into force, the plaintiffs applied to have their names registered for grant of ryotwari patta in their names. It was allowed by the Assistant Settlement officer by order dated 103.1973. Against the said decision, the second defendant preferred an appeal to the Director of Settlement and the appeal was dismissed on 20.12.1975. The second defendant preferred a revision before the Board of Revenue and by order dated 5.7.1976 the board of Revenue set aside the order of the Director of Settlement and remanded the matter for fresh consideration. The Director of Settlement, by his order dated 25.7.1977, dismissed the claims of the plaintiffs for ryotwari patta. The plaintiffs filed a revision against the said order before the Board of Revenue and that revision was dismissed on 31.1.1978. The plaintiffs came to this Court by way of Writ Petitions and the writ petitions were dismissed by the learned single judge of this Court. There were writ appeals, preferred by the plaintiffs in W.A. Nos. 305 to 308 of 1979 and a Bench of this Court , to which one of us had been a party, observed as follows;
In our view, the controversy is one which had got to be properly adjudicated upon by the Civil Court only and not under the machinery of the Act.
...We do not find the remedy to establish right, title and interest over the lands when there are rival claims, has been provided for under the provisions of the Act and no attempt was made before us to demonstrate this. Hence, we have to hold that there is no ousting of the jurisdiction of the civil court to decide disputes of the present nature. But, as expressed by Mr. S. Chellaswami, learned Counsel for the petitioners, there is a possibility that the reasonings and findings rendered by the authorities under the Act in all their orders culminating in the impugned order as well as in the reasonings expressed by the learned single Judge, may be put against the petitioners in case they resort to the civil process to establish their right, title and interest over the lands in question. It is upto the petitioners, after they succeed in the civil process, to approach the authorities under the Act for appropriate orders. Hence, we dismiss all the writ appeals and at the same time, observe that none of the reasonings and findings expressed in the orders of the authorities under the Act as well as that of the learned single judge shall stand in the way of the petitioners or be put against them in case they resort to the civil, process to establish their claims Mr. S. Chellaswami, learned Counsel for the petitioners states that pending the writ petitions as well as pending the Writ appeals, there were orders maintaining status quo and this position may be continued for sufficient time to enable the petitioners to seek the civil process and have their rights protected by obtaining appropriate orders from the civil Court. This is a reasonable request and we are inclined to accede to the same. The petitioners shall file the requisite suit or suits, if they are so advised, within three months from today and till them, the orders of status quo passed pending the Writ Appeals will continue to be operative.
This is how the plaintiffs went before the Civil Court by way of the suits.
4. The defendants would raise the following contentions in answer to the claims of the plaintiffs. The plaintiffs are not at all in possession of the suit properties comprised in Survey numbers 2917/1 and 2898/1. They are classified as Kaduporamboke in old settlement records and Thandaper. The suit properties are part and parcel of Ashambu Reserve Forest. They are not covered by the title deeds. Mr. W.A. Cox claimed title lib-fore the Forest Settlement Officer in respect of not only the properties converted by the title deeds, but also in respect of the properties purchased in the name of Mrs. Anna Amy Cox under the sale deed of 1050 M.E. and the claim was allowed to a total extent of 640 acres, including 339 acres covered by the 1050 M.E. and the claim was allowed to a total extent of 640 acres, including 339 acres covered by the 1050 M.E. sale deed and patta was granted. Mr. Charles Harold Simpson, the father of the plaintiffs, sold away the proper-ties covered by the title deeds as well as 1050 M.E. sale deed to third parties in 1952 and 1961 and no further area has been left out to be claimed under the title deeds. The suit properties are not the properties covered by the title deeds, but are only Ashambu Reserve Forest area and the features put forth by the plaintiffs as evidencing their possession are not there and even otherwise they cannot be counted for the same. The defendants would say that they are not aware of the oral family arrangement pleaded by the plaintiffs and they would say that it is ineffective in law. The defendants would deny that the plaintiffs made any improvements in the suit-properties. They would also dispute the plaintiffs' claim of prescription of title by adverse possession.
5. The Court below formulated the following issues in O.S. No. 66 of 1986 (1) Whether the plaintiffs are the owners of 192 acres in plaint schedule survey numbers as per title deed No. 3 dated 233:1863 and No. 15 dated 11.6.1865?
(2) Whether plaintiffs are in possession of plaint properties as per the family arrangement effected on 24.12.1969?
(3) Whether valuable improvement had been effected in plaint properties by the plaintiffs and their predecessors in nterest?
(4) Whether the first-defendant has any title or possession over any portion of plaint schedule properties?
(5) Even assuming that first-defendant had some interest in plaint schedule properties whether the same had not been lost by the long, open and hostile adverse possession of plaintiffs, their father Charles Harold Simpson and their predecessors in interest starting from Revernd John Cox for more than a century?
(6) Whether plaintiffs are entitled, to the declaration and injunction as prayed for?
(7) Whether the suit-properties will come within the area of the proposed Ashambu Reserve as per the notification Under Section 4 of 1908?
(8) To what reliefs are plaintiffs entitled?
In O.S. No. 67 of 1986 same issues, except for a variation' regarding the title deeds, were formulated as follows:
(1) Whether the plaintiffs are the owner of 77 acres 85 cents in plaint schedule survey numbers as per title deed No. 37 dated 4.3.1869 and No. 94 dated 15.10.1875?
(2) Whether plaintiffs are in possession of plaint properties as per the family arrangement effected on 24.12.1969?
(3) Whether valuable improvement had been effected in plaint properties by the plaintiff and their predecessors in interest?
(4) Whether first defendant has any title to or possession over any portion of plaint schedule properties?
(5) Even assuming that first defendant had some interest in plaint schedule properties whether the same had not been lost by long, open and hostile adverse possession of plaintiffs, their father Charles Harold Simpson and their predecessors in interest starting from Rev John Cox for more than a century?
(6) Whether plaintiffs are entitled to the declaration and injunction as prayed for?
(7) Whether the suit properties will come within the area of the proposed Ashambu Reserve as per they Notification Under Section 4 of 1908?
6. The parties placed considerable evidence, oral and documentary, common in both the cases, to substantiate their respective cases and that was the subject matter of scrutiny and assessment by the Court below and it rendered findings as follows:
(1) The plaintiffs have failed to establish that the properties covered by the title deeds relied on by them are in survey numbers 2917/1 (part) and 2898/1 (part).
(2) The plaintiffs in O.S. No. 66 of 1986 are entitled to a declaration in respect of properties covered by title deed No. 15, measuring an extent of acres 36.75 on account of the concession made by the defendants.
(3), Even in respect of the properties covered by title deed No. 1, the plaintiffs are not entitled to claim the relief of injunction, since, according to the Court below, there are others enjoying the other extents and in the absence of they being parties to the suit the relief of injunction could not be accorded.
(4) The predecessors in interest of the plaintiffs were the owners of the properties covered by title deeds No. 3,37 and 94 and those properties had already been disposed of and are not available for the plaintiffs.
(5) The family arrangement put forth by the plaint could not be believed and the plaintiffs could rely on the same for derivation of any title.
(6) There is no satisfactory evidence to come to conclusion that the plaintiffs or their predecessors in interest made valuable improvements in the suit-properties.
(7) Though the suit survey numbers have been included in the Notification issued by the defendants under the Tamil Nadu Forest Act, 1882, thereby indicating that they are reserve-forest, the Notification could be declared invalid only when the plaintiffs establish that the properties covered by the title deeds come within the suit two survey numbers. The court below opined that the properties covered by the title deeds cannot be included as reserve forest; but however since there is lack of correlation of the properties covered by the, title deeds with the suit survey numbers, it is not possible to express any view on the validity or otherwise of the Notification. As a result of its findings, the Court below decreed in part the suit O.S. No. 66 of 1986, declaring the title of the plaintiffs in respect of properties covered by title deed No. 15 and in other respects that suit was dismissed and the parties were directed to bear their respective costs. The suit O.S. No. 67 of 1986 was dismissed with costs of the defendants.
7. In these two Appeals, directed against the common judgment and separate decrease of the Court below, on the submission made by Mr. S. Chellaswami, learned Counsel for the plaintiffs, and Mr. E.D. Dakshinamoorthy, learned Government Advocate (Forest Cases) appearing the for defendants, the following aspects emerge for consideration; There is now dispute with reference to acquisition of properties by the ancestors of the plaintiffs under the four title deeds. According to the plaintiffs, the suits, two survey numbers are properties covered by title deeds. The defendants would say that the properties covered by the title deeds Were in survey numbers 2903, 2905, 2906, 2910 and 2911/1 and 2 and patta was already granted to the ancestor of the plaintiffs and these properties were alienated to third parties and hence the properties covered by the title deeds, are not available for the plaintiffs. The plaintiffs would counter-act this plea of the defendants by saying that the aforesaid survey numbers related to properties purchased 'by Mrs. Anne Amy Cox under the sale deed of 1050 M.E. comprised in lekkom 28 and they were so located and the decisions in O.S. No. 88 of 1958 and in appeal and second appeal would operate as res judicata and in any event they will be binding on the parties as decisions inter parties. In any event, the plaintiff claim to have prescribed title by adverse possessions to the properties covered by the suits two survey numbers. Though the plaintiffs rely on the oral family arrangement of 24.12.1969 inter se themselves and their father to project their claims separately, there is no need to concentrate on this aspect for the simple reason the plaintiffs do not put forth claims adverse to each other and they all accept the oral family arrangement and they have a common cause against the, defendants and vice versa the daughters admit the, claims of the sons. The defendants have not denied the factum of the oral family arrangement and they would only say that the said family arrangement would be ineffective in law, obviously on the ground of want of title to the properties concerned. If plaintiffs have, no title to the properties in question, the oral family arrangement would be of no legal consequence at all If, on the other hand, the plaintiffs have title certainly the oral family arrangement could be worked out inter se the plaintiffs against the defendants. Then the voice of protest of the defendants need not be taken into account to defeat the claims of the plaintiffs. The plaintiffs also claimed that they have made valuable improvements, This question will depend upon the decision on title either through deed or by adverse possession and will relevantly arise only if no title has been found in favour of the plaintiffs, There is an aspect of the Notification under the Tamil Nadu Forest Act of 1882. Here again, the question will assume relevance depending upon the finding on title, The court below has declined to grant injunction even in respect of properties covered by title deed No: 15, on the ground that there are others in possession and without they being parties to the suit, there cannot be an accord of the relief of injunction. This question we will relegate for consideration to that part of this judgment, dealing with possession.
8. Two important questions arise for consideration and answers to them will find a resolution to the controversy in this litigation:
(1) Whether the Suits two survey numbers relate to the title deeds relied on by the plaintiffs and whether the case of the defendants that survey numbers 2903, 2905, 2906, 2910 and 2911/1 and 2 were the properties covered by the title deeds and patta was granted in respect of these survey numbers to the ancestor of the plaintiffs and they got alienated and hence they are not available to the plaintiffs can be countenanced in view of the proceedings in and arising out of O.S. No. 88 of 1958?
(2) Whether the plaintiffs have prescribed title to the suit properties by advance possession?
9. Apart from the case of derivation of title to the suit properties by Deeds, as already noted, the plaintiffs have a case, that in any event they have perfected title by adverse possession to the suit properties. We propose to take up this aspect first The defendants would contend that the plaintiffs are not in possession of the suit properties and their properties, which they claim under the title deeds, lie elsewhere. That the suit -properties are comprised in Survey Numbers 2917/1 (part) and 2898/1 (part) is not in dispute. According to the defendants, the suit properties are part and parcel of Ashambu Reserve Forest, the defendants' further case is that the properties, which the plaintiffs acquired under the title deeds, along with 1050 M.E. Sale deed properties, have been sold away by the predecessor in title of plaintiffs, after patta thereto has been granted by the Forest Settlement Officer and the Plaintiffs are trying to usurp title to properties, which are part and parcel of Ashambu Reserve Forest. According to the defendants, the properties to which the plaintiffs were entitled to and which no longer are available to them lie elsewhere and not in the two survey numbers, set out in the plaint -schedules, as the properties of the plaintiffs, The question as to whether these two survey numbers are the properties comprised in the title deed can be dealt with separately. If in fact, these two survey numbers are the properties covered by the title deeds, then the case of the defendants that the plaintiffs have no title to the present properties must fall to the ground. On the sound and firm ground of title the plaintiffs can succeed. But, the plaintiffs have an alternative plea that even to the properties, which they have set out in the plaint-schedules, they have perfected title by adverse possession. Issue No. 5, in each of the two suites, was framed by the court below on the question of adverse possession or prescription of title on that basis, on the plea put forth be the plaintiffs.
10. Before we advert to the aspect of law on the question of prescription of title by adverse possession, it will be proper for us to deal with the factual materials placed in the case to find out as to whether the plaintiffs have factually substantiated this plea of theirs. After discussing the factual materials, we will be obliged to look into the case law to find out as to whether the facts fit in with the principles count enhanced by Courts on the question of prescription of title by adverse possession by individuals as against the state.
11. Heavy reliance is being placed by the plaintiffs' learned Counsel Mr. S. Chellaswami, on the Commissioner's report and commissioner's plan; marked in the cases as Ex. C.1 and C.3, being the reports of the Commissioner and Ex. C.2. and C.4 the plans prepared by the Commissioner. These reports and plans stand supplemented by the evidence of the Commissioner, examined as C.W.1 in the cases. Ex. c.3 is the report of the Commissioner in OS. No. 66 of 1986, out of which A.5. No. 859 of 1987 arises. That suit relates to the claim of the plaintiffs that the suit properties are those covered by the title deeds numbers 3 and 15; the earlier dated 23.10.1866 and the latter dated 15.8.1871, marked in the cases as Ex. A-3 and A-4. Ex.C.4 is the plan prepared by the Commissioner with reference to Ex.C.3. The Commissioner was asked to investigate and report on as many as seven point as follows:
(1) To prepare a plan for the plaint schedule property with the help of the plan annexed to plaint.
(2) To note the boundaries as contained in title deed Nos. 3 and 15.
(3) To note the various pathways leading to and contained in the plaint schedule property and also various plantations contained therein and their age and other details regarding the same and also not various items of improvements effected in plaint properties and their value.
(4) To note whether there are cairns showing the limits of the properties and indicate them in the plan to be prepared by the Commissioner.
(5) To note whether there are remnants of building in the plaint schedule properties and if so their age.
(6) To note the location of the plaint schedule properties with reference to lekkom-28.
(7) To note such other points as are brought to the notice of the Commissioner at the spot.
12. The Commissioner first located the properties, set out in the plaint schedule in O.S. No. 66 of 1986. The location was in survey numbers 2917/1 (part) and 2898/1 (part). The Commissioner was assisted by the Deputy Inspector of Surveys and by a Chain Surveyor. The Survey and measurements were done by adopting the odolite and chain survey methods. During the survey and inspection, the Government pleader, Range Officer, Forester and Forest Guards on behalf of the defendants were present. That the properties, which the commissioner inspected and in respect of which is submitted survey numbers 2917/1 (part) and 2898/1 (part) is evident from Commissioner's report Ex.C.3 and his plan E.C.4. In the objections filed by the defendants to the report and the plan of the Commissioner, it is not stated that what the Commissioner inspected and in respect of which he has submitted the report Ex.C.3 and the plan Ex.C.4 did not and do not relate to the Survey Numbers 2917/1 (part) and 2898/1 (part). The objections by the defendants are set out only briefly in six paragraphs and it is better they stand extracted as follows:
(1) The Commissioners report and plans are against facts and the lie of the property.
(2) The Commissioner has not measured the property as per its lie.
(3) The Commissioner has not taken any steps to peruse the old survey plan available in this case.
(4) The Commissioner has failed to note the nature of the trees standing thereon.
(5) The Commissioner has failed to note the suit property as Ashambu Reserve Forest.
(6) The boundaries described by the Commissioner are vague.
13. Ex. C.1 is the report of the Commissioner in O.S. No. 67 of 1986 out of which A.S. No. 860 of 1987 arises. The suit relates to the claim of the plaintiffs that the suit properties are those covered by the tile deeds numbers 37 and 94, dated 4.3.1869 and 15.10.1875 respectively. Ex.C.2 is the plan with reference to Ex.C.1. The Commissioner was asked to investigate and report on points similar to those in O.S. No. 66 of 1986. The Special Government pleader, the District Forest Officer, the concerned Forest Range Officer, the Forester and Forest Guards were present during the survey and inspection done by the Commissioner. That the properties, which the Commissioner inspected and in respect of which he submitted his report Ex.C. and drew up the plan Ex.C.2, are also in Survey numbers 2917/1 (part) and 2898/1 (part) is evident from the said report and the plan. In the objections filed by the defendants to the report and the plan of the Commissioner, it is not claimed that what the Commissioner inspected and in respect of which he has submitted his report and plan, did not and do not relate to the Survey Numbers 2917/1 (part) and 2898/1 (part). The objection of the defendants was very brief and it ran to six paragraphs as follows:
(1) The Commissioner's report and plans are against the facts and lie of the property.
(2) The Commission has not measured the property as per he.
(3) The Commissioner has not taken any steps to peruse the old survey plan available in the case.
(4) The Commissioner has failed to note the nature of the trees standing therein.
(5) The Commissioner has failed to note the suit properly as Ashambu Reserve Forest.
(6) The boundaries described by the Commissioner are vague.
It is therefore prayed that these objections to the Commissioner's report and plan may be accept and the report and plan be set aside.
Hence, we can take it that irrespective of controversy, with reference to the claim of title by the plaintiffs through the title deeds, that the features noted by the Commissioner with regard to suit -properties in O.S. Nos. 66 and 67 of 1986 related only to survey numbers 2917/1 (part) and 2898/1 (part).
14. The physical features noted by the Commissioner with reference to the properties in O.S. No. 66 of 1986 may be summarised as follows:
(i) Boundaries: There are rock marks with chandas (stones heaped up) at 63 points. The chandas are more than 30 years old. There are clear boundaries for the suit properties on all the sides, The 'black rock' board is fixed with old chandas, which is more than thirty years old, There are rock marks with chandas at thirty points (stones heaped up) which is shown in the plan.
(ii) Pathways: There are pathways along the boundary and also within the property of a width of three feet. Along the pathway there is a stone revetment wall. The pathways are all round and they are marked in dotted red line in the plan.
(iii) Buildings: There are remnants of two old buildings shown in the plan. The height of the stone-wall is about 3 to 5 feet and the width of it is 2 feet. The wall is built up with mud mortar. The building is more than 100 years sold.
(iv) Cultivation: Tea stumps are seen in a block in an area of 25 acres in extent. The tea sumps appears to be very old. Cardamoms are also seen scattered in ah area of about five acres. There are two jack trees more than 60 years old. Guavas and old growing stumps of coffee plants are also seen all over the property. Ginger is also planted near the jungle trees. China tea-plants are also planted along the pathway. Lemon gross are also seen On the western side, there are yielding cloves, oranges and also guavas trees scaltered here and there, which are about 12 to 15 years old. The age of the trees is about 10 to 12 years.
The physical features noted by the Commissioner in respect of the suit-properties in O.S. No. 67 of 1986 run as follows:
(1) Boundaries: An old Kattalai fence runs along the points G-2 to G-3 as shown in the plan and which also serves as a boundary. There are 55 rock marks with chandas (heaped up stones) seen throughout the suit properties and they are shown in the plan and the age of the chandas is more than thirty years
(ii) Road and Path ways-A road with a width of twelve feet starts from the point B.1 to B.12 and goes along T.D. Nos. 37 and 15 and the road is marked in the plan in red washed and this road is the identical road whose in the old lithoplan produced before the Commissioner. Along the boundary of T.D. Nos. 37 and 94 there are foot paths with a width of three feet all round.
(iii) Buildings and Constructions: There is a watertank in the boundary line of Survey No. 785 at point B.1 to B.2. The water-tank is fed by water from Karumbarai river, which is running through T.D. No. 37. The stored water from the Karumbarai river is being pumped up and is being used by Mr. Sampson and his family, including the plaintiffs. The remnants of an old building in T.D. No. 37 were shown to the Commissioner by the first plaintiff in O.S. No. 67 of 1986 and she told the Commissioner that lemon-gress oil was prepared in that building. The Commissioner noted only the remnants of a stone wall at the spot and that has been marked in the plan. In T.D. No. 94 there are remnants of an old building. The height of the stone-wall is five feet. The wall is built of mud mortar and it is more than 100 years old. The dimension of the building is 52 x 16 feet. The building is divided into three rooms.
(iv) Cultivation: Touching the road and the tank, there is a nursery maintained by the plaintiffs. Along AB line there are two old jack trees of more than 70 years old Areccanut trees of more than 50 years old are seen. Mango trees more than 80 years are seen. Along the line G, G.1 and G.2 there are casuarina trees more than 10 years old, which serves as a boundary for T.D. No. 37. There is clearing of the land and cashew nuts. The guavas, oranges and cloves are yielding.
15. The Commissioner himself was examined as C.W.1. He proved his reports and plans. Nothing has been elicited in the cross-examination of C.W.1 to discredit the physical features noted by him in his reports and plans. C.W.1 explains what exactly he meant by 'chandas' by stating that they are stone-heaps at the boundary lines; they are very old and they could be thirty to fifty years old. According to C.W.1, in the suits two survey numbers there are old tea plant stumps, even though he has not ascertained the age of such stumps. He also says that in Ex.C.2 plan in the middle of the survey numbers there is an arrow mark. It is true C.W.1 could not say as to who put up the chandas.
16. Order 26, Rule 10(2) of the Code of Civil Procedure says that the report of the Commissioner shall be evidence in the suit and shall form part of the record. It is not to be stated as a proposition of law that the report of the Commissioner is an unimpeachable substantive evidence in the case. But, when the Commissioner has been examined as a witness and there has not been any demonstration that his report and evidence lack veracity, certainly it is open to the court to take into consideration the report and the plan as substantive evidence. If there is a note of dissatisfaction registered by the defendants, they ought to have seen to it that the reports and the plans of the Commissioner are set aside by the Court below by taking appropriate steps therefor and they could have asked for a fresh commission. This process the defendants did not resort to.
17. It is not as if that the Court is left with no other material except the reports and plans of the Commissioner. There is other evidence corroborating the reports the plans and the evidence of the Commissioner. P.W.1 is the first-plaintiff in O.S. No. 67 of 1986. Her evidence on the question of possession runs as follows: The entire area of 307.79 acres lie together as a compact plot within definite boundaries. On all the four sides, there are heaps of stones (Cairns) on the boundary limits. There are remnants of old buildings in title deed No. 3. After the blight in 1880 which destroyed the coffee plantation, Reverend John Cox cultivated tea of china variety and cardamom of Mysore variety in the property covered by title deeds Nos. 3 and 15. Those plants are still in existence. Apart from tea and cardamom raised by Reverend John Cox, his heirs have raised jack mango, pommel and lemon gress. The plaintiffs planted oranges, cloves, cashew-nuts, arecanuts, pomelos, coffee, casuarina, guavas, etc. in about 10 acres, about 10 to 15 years ago. To prevent soil erosion, the plaintiffs have terraced the land covered by title deeds Nos. 15 and 37. There are bridle pathways put up by Reverend John Cox. Those pathways are being maintained by the plaintiffs. In properties covered by title deed No. 3 there are remnants of 100 years old building constructed by Reverend John Cox for the purpose of quarters for the labourers. The plaintiffs are in possession of the properties. In the properties covered by title deed No. 37, water tank was constructed by P.W.1's father. The water is used for cultivation in the suit-properties and also lekkom 28 property. In the properties covered by title deed No. 94, there are remnants of the building called 'Oliver's bungalow'. Where Reverend John Cox was residing. The water tank is situated between the property covered by title deed No. 37 and the property involved in O.S. No. 88 of 1959. About 95 per cent of the tank is situate in the property covered by the title deed. In 1973 and 1974, the plaintiffs and their father did the terracing work to prevent soil erosion.
18. P.W.2 was working as a Mainstry in the estate of the father of the plaintiffs for ten years and before that for thirty years he was working under him as a labourer. He resides in the quarters in the estate. He went to work at age of 15 and on the date of his examination before the Court in March, 1986, he was 55 years old. There were three hundred persons working along with him as labourers. His evidence further runs as follows: Ginger, tea, guava, pomel, jack, orange, cloves are being raised in the suit-properties. The age of the tea plants will be about 100 years. After the father of the plaintiffs, the plaintiffs are enjoying the suit properties. There is a big well built up of stones on the, eastern side of the bungalow and the water there from is being pumped by motor for cultivation purposes. There is lemon-grass cultivation and previously lemon-grass oil was extracted; but for the past ten years there has been no such extraction. The suit properties are in four blocks and the four blocks have got boundaries. There are signs to show that there were buildings in the suit-properties. Paths of 6 feet width for houses put up in olden times were there. There are stone heaps. It is true that P.W.2 could not tell the survey numbers; but on the whole his evidence has not been impeached as lacking in verasity by the cross-examination on behalf of the defendants.
19. P.W.3 was working under the father of the plaintiffs for about thirty-five years. He was residing in the quarters built near the bungalow of the father of the plaintiffs. The father of this witness was also working there. He has deposed as follows; Long before his joining the services of the father of the plaintiffs, tea plants were there. The suit-properties are in four blocks. After the father of the plaintiffs, the suit-properties are in the enjoyment of the plaintiffs. In 300 acres there are ginger, jack, mango, tea, coffee, orange and lemon-grass. Except for suggesting that he did not work, as claimed by him, nothing has been brought out in the cross-examination of this witness to discredit his version.
20. We have the evidence of D.W.1, who was District Forest Officer, Kannyakumari. The following features have emerged from his evidence on the question of possession: The stone-heaps in the boundaries of the properties covered by title deeds were put up by the father of the plaintiffs and the plaintiffs. This was done in 1977. But, no action was taken against them. Cases were filed against their employees. But, no details or records have been furnished. Lemon-grass, if grown in Forest Reserve, would be auctioned. There are lemon-grass in the suit-properties. No record has been placed before Court to show that there was ever an auction of the lemon-gass-grown in the suit-properties by the Department in assertion of its rights. In the centre of the suit properties there are about ten stone-heaps. According to D.W., these were kept by the survey Department. But, none has been examined therefrom, D.w.1 then admits that the suit-properties were not surveyed. There are jack, guava, mango, tamarind trees in the suit properties. According to D.W.1, the plaintiffs did not enjoy the usufructs. But, he has no case that the Forest Department reaped the benefits. D.W.1 would dispute the plans prepared by the commission. But, significantly he has not even looked into them. He did not go with the Commissioner. His men did not point out the properties covered by the title deeds. There is no record to show that the suit properties are in the occupation of the Forest Department D.W.1 would say that there are no tea-plants, coffee plants and cardamom plants and there is no water-tank. Significantly, no such suggestion was even put to either C.W.1 or P.W.1 or other witnesses examined on behalf of the plaintiffs,
21. D.W.2 is the Village Officer of Alagiyapandipuram. According to him, the properties covered by title deeds are in the possession of the alienee. He admits that he has not visited the suit-properties. He does not known their boundaries. He would say that the report and plan of the Commissioner are not according to the lie of the properties. Significantly, he has not got the plans to show the lie of the suit-properties. He has no personal knowledge about the Forest Department enjoying the suit-properties. He has taken charge as the Village Officer only in July, 1985. In substance, his knowledge on the relevant aspects is very superficial.
22. No credit could be annexed to the evidence of D.W.3, who is an alienee from the father of the plaintiffs, on any aspect, for the simple reason that his son, his daughter and himself were examined as witnesses for the prosecution in a case of murder against the father of the plaintiffs. The above is the discussion of the evidence placed in the case on the question of possession, claimed by the plaintiffs.
23. There is an adverse comment against the plaintiffs made by the Court below for non-examination of their father Mr. Charles Harold Simpson, while he was alive. This comment is totally unwarranted when we take note of the steps taken by the plaintiffs to examine their father even during his life time and the nonchalant attitude of the Court in dealing with those steps. The plaintiffs in O.S. No. 86 of 1986 filed I.A. No. 586 of 1984, while the suit was originally on the file of the subordinate Judge, Nagercoil as O.S. No. 40 of 1984. In the affidavit filed in support of this application. It was claimed that the father of the plaintiffs was 87 years old and he was suffering from chronic bronchitis and hiatus hernia and he was very weak and could not move about and the plaintiffs wanted their father to be examined on commission. No effective orders were passed on this application. The plaintiffs in that suit filed I.A. No. 652 of 1984 to take up the trial of the suit at the earliest, so that the evidence of their father can be recorded. Here again, no effective order was passed on this application. There was an application in I.A. No. 727 of 1984 filed by the very same plaintiffs to advance I.A. No. 586 of 1984. Though there was an order advancing the hearing of that application, that application was not taken up and disposed of and effective orders passed thereon, as already noted. Ultimately, on 27.3.1985 I.A. No. 586 of 1984 was closed since the witness had expired. Equally so, I.A. No. 652 of 1984 was closed on 27.3.1985. Under these circumstances, the plaintiffs could not be blamed for non-examination of their father during his lifetime.
24. Now the turn comes to look into the case law to assess as to whether the factual materials do support the case of prescription of title by adverse possession by the plaintiffs. The suit-properties are vast extent of land. They are situate in a hilly tract. The defendants would claim them as forest-reserve. The plaintiffs would put forth an alternative case that they and before them, their predecessors-in-title have been in possession and enjoyment of the suit-properties over the statutory period and they have prescribed title to the same by adverse possession. The subject of adverse possession is vast indeed. We are culling out for discussion the judicial precedents, which have dealt with not only the general principles governing prescription of title by adverse possession, but have also dealt with cases involving large extents of properties.
25. In Sivasubramanya v. The Secretary of State for India in Council (1886) I.L.R. 9 Mad. 285, a Bench of this Court countenanced that where a tract of land with a defined boundary has been throughout claimed by a person as owner and acts of ownership have been done on various portions of it, such acts may be accepted as evidence of possession of the whole tract. We feel obliged to make extracts of the following passages:
Physical possession is a pure matter of fact, and there is nothing peculiar about it, but in order that it may generate ownership, it is necessary that the possessor should hold the thing exclusively, and for himself as owner.
The exclusive holding is a physical fact, and when it is united with the intention to hold for himself as owner, it becomes such as will generate a little by prescription. When we speak of actual possession, we refer to the fact as in union with the intention to hold as owner. On the other hand, when a particular act is done upon a thing with the belief that another is its owner and not with the intention to hold as owner, and when the particular act has been continuously done for the period fixed by the law of prescription, the person doing the act acquires a legal right to do that act though the thing upon which it is done is in other respects under another's dominion. It should also be observed that when there is an intention to hold a thing as owner, it is not necessary that it should be enjoyed in any particular way, but it is sufficient that some overt act is done upon the thing in the execution of such intention. In Clark v. Elphinstone 9 I.L.R. 6 A.C. 164 it was observed by the Privy Council that it was not necessary that some act should always be done upon the spot in dispute itself, but that it was enough if some overt acts of ownership were done in relation to that spot, as, for instance, enclosing it. In principle the act done is one of ownership or evidence of easement according as the person doing it asserts general ownership or a particular right in another's property, and in the first case the act of enjoyment is designated possession and in the latter case quasi possession. Such being the distinction in principle between acts of ownership and acts which are done in the exercise of easements, we are unable to support the conclusion at which the judge has arrived, viz., that the appellant's rights are more easements. It may be that specific portion of the hills were not regularly cultivated, but such cultivation is not necessary when other acts of ownership are done upon them. As already observed, there is evidence of acts of enjoyment done in the open assertion of title as owner, and the ayakut accounts and the special circumstances of the case warrant the presumption that such acts were done for more than sixty years, if not from time immemorial. As to the interference by officers of Government with the enjoyment by the zamindar of his rights in full, there is no evidence to show that such interference was accompanied with a denial of the zamindar's right as owner. The enjoyment of any right of ownership over the soil, whether it be the cutting of timber of or turf or the gathering of produce, is prima facie proof of ownership of the soil, and when the District judge found that there had been such an enjoyment found that there had been such an enjoyment of the forest as proved a title to the profits, he was logically bound to find a title established to the soil, seeing that the enjoyment had been throughout accompanied with an assertion of such ownership. We see no reason to doubt that all the hills to which the suit refers were included in, and formed part of, the zamindari as it existed in 1803 and as it had been enjoyed by the appellants family prior to the permanent settlement.
* * * As for the cases cited by the judge, they either do not support his view or are not on all fours with the suit before us. The contest in Clark v. Elphinstone L.R. 6 A.C. 164, has reference to a plot of forest-land between the conterminous private estates of which one was obtained but grant from the Crown by Wilson and Ritchie and the other by Mackenzie. There was no evidence adduced to prove that any overt or physical act of ownership was done upon the specific plot. It was found as a fact that no defined boundary was established by agreement subsequently to the grant. The judicial Committee observed that there was no doubt that in many cases acts done upon parts of a tract of land may be evidence of the possession of the whole, that if a large field were surrounded by hedges, acts done in one part of it would be evidence of the possession of the whole; but that case was not upon the facts one of that class. So far it is an authority in support of the view that when a tract of land with a defined boundary has been throughout claimed as owners and acts of ownership have been done upon various portions of it such acts of enjoyment may be accepted as evidenced of the possession of the whole.
This decision of the Bench was affirmed by the Privy Council in Secretary of State for India in Council v. Nellakutti Siva Subramania Tevar (1891) 18 I.A. 149)
26. In Radhamoni Debi v. The Collector of Khulna and Ors. (1900)27 I.A. 136, the privy Council dealt with a case, the facts of which, as set out in the pronouncement, run as follows:
In considering the question thus raised it is well to have in mind the nature of the disputed land. Its area is about 1400 big has; but it is a significant fact that the most various estimates on this subject have been made during the period in dispute, the reason being that very few people had occasion to be there or were interested in its size. The degree to which this is the case may be gathered from two facts. It is clearly ascertained that in 1865 there were no human beings living on any part of the ground, and only one twentieth of the whole area was susceptible of cultivation. At the time of this action there was Only one small group of dwellings. The ground, generally speaking, is jungle; but there has been in some parts more or less of intermittent cultivation.
The two competitors for this territory are, on the one hand, the Collector of Khulna (who will hereafter be referred to as the respondent), whose lessee is in possession and whose theory is that this is the southern part of his talook of Bill Pabla, and on the other hand, the appellant, who is the undoubted proprietor of the mouzah of Kulati which lies to the south of the disputed land'.
The assessment of the evidence in that case ran as follows:
The best attested cases of possession do not cover the whole period, and apply to small portions of the ground; While exhibiting those positive deficiencies, the appellant's case is moreover confronted by tangible evidence of possession by the respondent which is far superior in quality.
As to what should go to constitute adverse possession in the language of Lord Robertson.
But the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor.
27. In Igbal Husen and Ors. v. Nand Kishore and Ors. (1902) I.L.R. 26 All. 294, a Bench of the High Court of Allahabad was prepared to accept evidence of possession of certain specific property treated as evidence of possession as regard an appendage to such property.
28. In Vithaldas Kanjishet v. Secretary of State for India and Anr. (1902) I.L.R. 26 Bom. 410, a Bench of the High Court of Bombay accepted the proposition that where land is unenclosed, acts of ownership in one part may be presumed to be acts of ownership over the whole unless there are circumstances rebutting that presumption.
29. In Venkatarama Iyer and Anr. v. The Secretary of State for India in Council and Anr. (1910) I.L.R. 33 Mad. 362, a Bench of this Court was not prepared to give credence to a mere entry as poramboke in pymash and settlement registers as sufficient to prove the title of Government without proof of acts of ownership. We are referring to this pronouncement because the defendants seem to be content to rely on mere entries in certain records, in support of their case.
30. In Karia Kownden and Ors. v. Raghava Reddi and Ors. A.I.R. 1914 Mad. 380(1), a Bench of this Court dealt with a case where there was a grant and subsequently it was cancelled and the defendants never were in possession of any portion, and in that context it was observed as follows:
While there is a presumption in the case of a person having title that possession of the whole is in him even if he exercises acts of ownership only over a portion leaving the rest waste, there is no such presumption in the case of a trespasser whose adverse possession will be restricted to the particular portions in his actual possession.
In the present case, the defendants could not assert that they have clear proof of title over the suit properties. The plaintiffs submit an alternative case of adverse possession. Hence, the rigor of the view in the above pronouncement need not be applied to the facts of the present case.
31. In Basant Kumar Roy v. Secretary to State A.I.R. 1917 P.C. 18, the Judicial Committee pointed out that, An exclusive adverse possession for a sufficient period may be made out in spite of occasional acts done by the former owner on the ground for a specific purpose from time to time.
32. In Rakhal Chandra Ghose and Ors. v. Durga Das Samanta and Anr. (1922) 67 I.C. 673, a Bench of the High Court of Calcutta opined that, Possession is not necessarily the same thing as actual user. The nature of the possession is to be looked for, and the evidence of its continuance must depend upon the character and condition of the land in dispute.
33. In Nizam Din and Ors. v. Ali Mohamad and Ors. A.I.R. 1927 Lahore 753, the plot in dispute formed part of larger plot within defined boundaries. The learned single judge of the High Court of Lahore held that physical acts of ownership in portions in assertion of title over the whole plot throughout is relevant evidence as to the possession of the whole plot.
34. In Nageshwar Bux Roy v. Bengal Coas Co. Ltd. A.I.R. 1931 P.C. 186) 60M LT 162 Their Lordships countenanced that the application of the general rule, where title is founded on an adverse possession, the title will be limited to that area of which actual possession has been enjoyed, must depend upon the facts of the particular case.
35 The Judicial Committee in Secretary of State v. Debendra Dal Khan A.I.R. 1934 P.C. 23, dealing with a case of prescription of title by adverse possession against the Crown in a portion of a river, observed as follows:
The classical requirement is that the possession should be nec vi nec clam nec precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. If the rights of the Crown have been openly usurped it cannot be heard to plead that the facts was not brought to its notice. The Limitation Act is indulgent to the Crown in one respect only, namely, in requiring a much longer period of adverse possession than in the case of a subject; otherwise there is no discrimination in the statute between the Crown and the subject as regards the requisites of adverse possession. It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession, be not proven to have continued every quarter, month or year, yet ordinary possession will be sufficient ad victeeiam causi, albeit it be proposed in the terms of a continual possession quia probats extremres prasesumuntur media, if the distance be not great. Stair's Institutions of the Law of Scotland, 4, 40, 20.
The fact of possession may be continuous though the several acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription; Millar on Prescription, p.36.
The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible.
36. In Maharaja Srischandra Nandy and Ors. v. Baijnath Jugal Kishore, (Firm) A.I.R. 1935 P.C. 36), the Privy Council retiternated the principles laid down in Secretary of State v. Debendra Lal Khan A.I.R. 1934 P.C. 23.
37. In Tahilram Tackchand and Anr. v. Mt. Miral and Ors. A.I.R. 1938 Sind 132, dealing with the question of adverse possession over waste land, the following observations were made:
There remains only the arguments of the learned advocate that the acts of cultivation and the acts of grazing were in themselves only fugitive acts of possession and that in the land acquisition proceedings the land was described as waste. But the description of land as waste land does not in this part of the country mean desert land incapable of being made the subject of continued acts of possession except by acts of active physical occupation such as fencing. The waste lands here described are waste lands only cultivable at long intervals of time but offering at much shorter intervals of time grazing for cattle. The subordinate Judge does not err when he says that acts indicative of possession must vary with the nature of land over which possession is to be exercised and asserted.
We do not think therefore we have here a case where possession is abandoned over land not susceptible of acts of continuous user and susceptible only of fugitive acts of possession. We do not think we have here a case of merely fugitive acts of possession or a possession which is constructive only. We are of the opinion that the lower courts were right in their conclusions that the evidence shows that the syeds (including Pirushah or his heirs and successors) were in actual and exclusive and continuous occupation of the suit lands adverse to the defendants for over thirty years immediate proceeding the suit, and that the defendants have been unable to show one positive act of possession throughout this long period of time.
38. In Abbas v. Audi Chettiar and Ors. , Ananthanarayanan. J. as he then was, with reference to adverse possession over sea-shore, held that isolated acts of user like drying of fish and fishing nets do not constitute adverse possession.
39. In Ambika Prasad Thakur and Ors. v. Ram Ekbal Rai and Ors. A.I.R. 1966 S.C. 605 presumption of continuance of possession, both forwards and backwards, was countenanced and the question was dealt with in the following manner:
The survey records of 1892, 1895, 1904 and 1909 disclose that the ancestors of the plaintiffs held some of the frontier plots of Dubha Mal. The High Court was, therefore, asked to draw the inference that their ancestors held those plots during 1845 to 1863 when the Taufir lands accreted. The question is whether such an inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration(d)to S.114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India, see Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani 14 I.A. 101 at p. 110 (PC)and England, see Bristow s. Cormican (1878)3 A.C 641 at pp. 669, 670, Doe v. Young (1845)8 QB63 : 115 ER798. The broad observation in Manmatha Nath v. Girish Chandra Roy 38 Cal. W.N 763 at p. 770 : A.I.R. 1934 Cal. at 708 and Hemendra Nath v. Ninanendra Prasanna 40 Cal. WN 115 at 117 : 9 A.I.R. 1935 Cal. 702 at p.704, that there is no rule of evidence by which one can persue the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and surrounding circumstances.
40. In the present case, there are positive acts of possession. These acts indicate that the plaintiffs and before them their predecessors in title have been improving and developing the lands and have put up boundaries, land marks and constructions. They have cultivated the lands, raising commercial crops and fruit-yielding trees. They have put up pathways all round. On the facts of the case, the proper test to be applied is to find out whether the plaintiffs and before them their predecessors in title for over the statutory period exercised such dominion over the suit-properties as to justify a factual inference that they were and are in possession of the whole extent. It is not necessary that there should be proof that the plaintiffs and before them their predecessors in title were in actual physical possession of every inch of the land like an octopus spreading out its tentacles and it would suffice the purpose where positive acts of possession and enjoyment of sufficient portions of the land stand proved and further the evidence discloses that the plaintiffs and before them their predecessors in title exercised dominion over the suit properties in the manner and method by which alone such dominion could be expected to be exercised After all, possession is a question of fact to be answered by legitimate inferences from the materials exposed in the case. In our view, the inference is irresistible that the plaintiffs and before them their predecessors in title have been exercising dominion over the suit-properties assertaining rights of ownership over the same for over the statutory period. In contrast, the defendants have no positive piece of evidence that the suit-properties were treated by them as forest-lands at any point of time except for the notification to which the plaintiffs take offence. D.W.1 frankly admitted that there is no record to show that the Forest Department was and is in possession of the suit-properties Applying the ratio of the Supreme Court in Ambika Prasad Thakur and Ors. v. Ram Ekbal Raj and Ors. A.I.R. 1966 SC 605), it will be legitimate for us to draw an inference of continuity of possession both forwards and backwards, on the facts of the present case.
41. The Court below, even though it formulated issue No. 5 in the two suits on the question of prescription of title by adverse possession by the plaintiffs, has not thoroughly discussed the evidence from this point of view and has made cursory remarks here and there. The court below has brushed aside the reports and the plans filed by the Commissioner, on the ground that the Commissioner himself has stated that it was impossible to measure the whole area as requested by the Government Pleader appearing for the defendants, before the Court below. The request by the Government Pleader seems to be to the effect that the property should be measured with old survey plan or any authenticated plan prepared by the Government of Tamil Nadu or Kerala and with the help of District Head Surveyor. The Commissioner comments that the Government Pleader did not produce before him any authenticated plan and the entire property of old survey numbers 2917/1(part) and 2898/ 1(part) are having extensive area and are with strangers who are not parties to the suit and in that context the Commissioner has expressed the view that it was impossible to measure the whole area as per the memo given by the Government Pleader. But, the Commissioner has categorically stated that with the help of the Deputy Inspector of Survey and a qualified Chain Surveyor the suit-properties were surveyed, measured and the plans were prepared by the Theodolite Surveyor. The stray comment of the Commissioner, without the Commissioner being confronted with the same to offer his explanation when he was before the Court, out not to have been counted and magnified by the Court below as a factor necessitating discredit to the reports and the plans of the Commissioner. It is not the case of the defendants that others are in occupation of the suit properties. It is true that the defendants deny the possession claimed by the plaintiffs. But, they never concede that others are in possession. The Court below also takes note of Ex. A-13 the report of the Commissioner in O.S. No. 88 of 1958 to say that the suit-properties here could not have been cultivated with coffee and tea plantations as well as fruit-bearing trees. The passage relied on by the Court below in Ex.A-13 has been called out of context and certainly it will not lead to the conclusion that the suit-properties were not cultivated with coffee and tea plantation and fruit-bearing trees. The entirety of the relevant passage in Ex.A-13 runs as follows:
The plantations in the portion sold to Devagiri Plantations Ltd., and those in the plaint properties are similar; but regarding the other neighbouring properties we found in them either forest growth or cultivations like Tapioca plantations, chillies and the like temporary crops, but no permanent crops such as coffee, tea, cocoa etc., which we found in the plaint property. This is only our general impression been (torn) we did not make a detailed inspection of the neighbouring properties plaintiff and the (torn) did not require us to note any other point.
We beg to submit (torn) plans and two notices issued to the counsels on 28.5.1959.
The Court below has taken note of the expression 'neighbouring properties', as specifically referable to the suit properties here. This is only in the field of presumption. The Court below did not also advert to the statement in the passage extracted as above that it was the result of a general impression and there was no detailed inspection of the neighbouring properties. We cannot concur with the impressions gathered by the Court below on this aspect our discussion of the evidence and the application of the law to the facts, which emerge from evidence, lead us to conclude that the plaintiffs and before them their predecessors in title have been in possession of the suit-properties over the statutory period adverse to the right, if any, of the defendants. There is no acceptable proof that any one other than the plaintiffs are in possession.
42. This takes us to the first aspect as to whether the suits two survey numbers relate to the four title deeds, relied on by the plaintiffs, and as to whether the contention of the defendants that for the properties covered by the title deeds, the survey numbers were 2903, 2905, 2906, 2910 and 2911/1 and 2, for which patta was already granted and they were alienated away by the predecessor in title of the plaintiffs could be accepted. The grant of extents of land under the four title deeds marked in the case as Ex.A.3 to A.6 is not a point in dispute. The specific case of the defendants is that in respect of the properties covered by the title deeds patta was granted by the Forest Settlement Officer, Padmanabhapuram and those properties were alienated to third parties by the predecessors in title of the plaintiffs under Ex.B.4 to B.6 in 1952 and 1961, and hence those properties are no longer available for the plaintiffs. The defendants specify the above mentioned survey numbers as referable to the title deeds. The defendants for this purpose rely on the proceedings relating to grant of patta by the Forest Settlement Officer, Padmanabhapuram in favour of the predecessor in title of the plaintiffs in respect of these survey numbers counteracting this stand of the defendants, the plaintiffs would endeavour to demonstrate that these survey numbers are referable to the properties acquired by Mrs. Anne Amy Cox, the grand-mother of the plaintiffs" father by sale deed of the year 1060M.E., which formed five-sixth share in lekkom 28 and there was an occasion for the father of the plaintiffs to file the suit O.S. No. 88 of 1958 on the file of the District Munsif, Nagercoil, for declaration of title and for injunction in respect of some of the properties covered by the sale deed of the year 1050 M.E., and the State, the defendant in that suit, raised the plea that the properties in that suit lie outside lekkom 28 and were not included in the sale deed of the year 1050 M.E., and this plea was tested and found against the State in that suit and the proceedings in that suit clearly indicate that the survey numbers which the defendants now point out as referable to the properties covered by the title deeds, are only properties covered by the sale deed of the year 1050 M.E., and the properties covered by the title deeds lie elsewhere. The plaintiffs would advance a case that the decision and the proceedings in O.S. No. 88 of 1958 will operate as res judicata against the defendants and debar them to raise the present plea, so as to stultify the case of the plaintiffs.
43. Mr. S. Chellaswami, learned Counsel for the plaintiffs, would advance a case that the decision in O.S. No. 88 of 1958, confirmed by all the higher forums upto the Supreme Court of India, will operate as res judicata with regard to the present plea of the defendants that survey numbers 2903, 2905, 2906, 2910 and 2911/1 and 2 are properties covered by the title deeds and for which patta was granted by the Forest Settlement Officer and those properties got alienated and hence the properties covered by the title deeds are no longer available for the plaintiffs. The first step to test this plea would be to find out the nature of the controversy that was existing between the parties in the earlier suit and which found resolution therein. Ex.A.27 is the copy of the plaint in O.S. no. 88 of 1958. The suit was laid for declaration of title and for injunction. The properties involved in O.S. No. 88 of 1958 as follows:
(1) Survey No. 2898/2 and 3: Extent Acres 10.12 (2) Survey No. 2902/ : Extent Acres 167.50 (less 5 acres for which patta had been issued) (3) Survey No. 2917/3 : Extent Acres 678.88 Total : Extent Acres 856.50.
The plaintiff in that suit, the father of the plaintiffs in the present suits, would claim that the suit-properties were part of properties acquired by his grand-mother Mrs. Anne Amy Cox under a sale deed of the date 26.2.1050 M.E., corresponding to 10.10.1874. A copy of that sale deed is marked in the present suits as Ex.A.8. It covers five-sixth of lekkom No. 28. The State the defendant in that suit, would contend that the suit-properties lay outside lekkom No. 28 and could not have been included in the sale deed of the year 1050 M.E. This is evident from the copy of the written-statement in that suit, marked in the present suits as Ex.A.30. Hence, the controversy was as to whether the suit-properties in that suit formed part of lekkom 28 and were included in the sale deed of the year 1050 M.E. The issues 1 and 2 in that suit reflected this controversy. There was a Commissioner appointed and he prepared a report and two plans marked in that case as Ex. C.1, C.2 and C.3. Copies of the said documents and marked in the present suits as Ex.A.13, A.31, and A.14 respectively. The first Court rendered the judgment on 26.2.1960 holding that the properties in that suit were part of lekkom no. 28 and were included in the sale deed of the year 1050 M.E. and granted reliefs to the plaintiff therein. The copies of the judgment and decree in O.S. No. 88 of 1958 have been marked in the present suits as Ex.A.9 and A.22 respectively. The ultimate judgment in appeal, preferred by the State was rendered by the District Judge of Kanniyakumari at Nagercoil on 9.7.1965. The appellate Court dismissed the appeal. The copy of the appellate judgment has been marked in the present in suits as Ex. A.10. The State preferred a second appeal in S.A. No. 266 of 1968 to this Court and that was dismissed by this Court on 25.8.1966, upholding the findings of the two Courts below and a copy of the judgment in S.A. No. 266 of 1968 has been marked in the present suits as Ex.A.11. There was a further agitation by the State to the Supreme Court of India by way of a Special Leave petition in S.L.P. (Civil) No. 1031 of 1968 with a petition to condone the delay and there was a refusal to condone the delay and the Special Leave Petition was dismissed on 17.10.1968. A copy of the said order has been marked in the present suits as Ex.A.12. It must also be noted that the State filed an independent suit O.S. No. 4 of 1964 on the file of the District Judge of Kanniyakumari at Nagercoil for declaration of title and for injunction in repect of the very same properties, subject matter in O.S. No. 88 of 1958, stating that the decree therein was without jurisdiction. The suit O.S. No. 4 of 1964 was dismissed on 31.12.1968, as could be seen from Ex.A.20 copy of the judgment therein.
44. As already noted, the controversy in O.S. No. 88 of 1958 was as to whether the three survey numbers involved in that suit were part of lekkom No. 28 and were included in the sale deed of the year 1050 M.E. It is true a necessity arose to locate the properties covered in lekkom No. 28 and by the sale deed of the year 1050 M.E. In that process, the survey numbers, which the defendants in the present suits, say are referable to the properties covered by the title deeds here were found to be part of lekkom No. 28 and covered by the sale deed of the year 10050 M.E., But, that aspect emerged only incidental to the main controversy in that suit. There was no necessity in that suit to advert to and adjudicate upon the controversy in the present suit as to whether the above said survey numbers were part of lekkom No. 28 and covered by the sale deed of the year 1050 M.E. Even without locating these survey numbers and without rendering any finding thereon, the courts, dealing with the litigation in O.S. No. 88 of 1958, could have resolved the controversy in that suit. There was no necessity to advert to this aspect and if, in the course of the proceedings in that suit, this aspect emerged, that could not be said to be a decision inter se the parties herein on this question. The question as to whether these survey numbers were part of lekkom 28 and were covered by the sale deed of the year 1050 M.E., did not arise directly and substantially as an issue in O.S. No. 88 of 1958. This question has arisen here, by virtue of the contentions and, counter-contentions of the parties in the present suits. For any finding in an earlier suit to operate as res judicata in a subsequent suit, it ought to have had been necessary for a decision and disposal of the earlier suit, by the question having had been directly and substantially in issue between the parties in the earlier suit and finally decided therein. By location of these survey numbers, along with the survey numbers involved in O.S. No. 88 of 1958 in lekkom 28 and as covered by the sale deed of the year 1050 M.E., the plaintiffs in the present suits may find an aid to answer the contentions of the defendants herein that these survey numbers are to be correlated only to the four title deeds. But certainly the rigour of the rule of res judicata being what it is, cannot be invoked to shut out the defendants at the threshold itself from raising this plea.
45. We must record that on behalf of the defendants it was contended that the earlier suit O.S. No. 88 of 1958 was tried and decided by the District Munsif, and whereas the present suits had come to be laid earlier before the Subordinate Judge and later heard and disposed of by the District Judge, and the District Munsif., could not be said to have had competency to try and decide the present suits. A proposition was advanced on behalf of the defendants that 'where the former and the subsequent proceedings are suits and the former suits was instituted in a court which did not have pecuniary jurisdiction to entertain the subsequent suit, earlier decision in the former suit does not operate as res judicata'. The decisions in Nabin Majhi v. Tela Majhi and Anr. ; and Promod Ranjan Banerjee v. Nirapada Mondal A.I.R. 1980 Cal. 181 were relied on. In answer, Mr. S. Chellaswami, learned Counsel for the plaintiffs, by pointing out the object of the parliament in introducing Explanation VIII to Section 11 of the Code of Civil Procedure, would submit that the expressions therein would mean Court of limited jurisdiction are wide enough to include a court, who lacked the pecuniary jurisdiction of the court before which the second suit came to be laid and the principle of res judicata will apply effectively irrespective of the aspect of pecuniary jurisdiction, provided the earlier court was competent to try and decide the point in issue between the parties, and such was the position in the present case. Reliance in this behalf was placed on the following pronouncements:
(i) Dattaraya Govind Mahajan and Ors. v. State of Maharastra and Anr. .
(ii) Puthen Veettil nolliyodan Devoki Amma and Ors. v. Puthen Veettil nolliyodan Kunhi Raman Nair and Ors. ;
(iii) Kumarmoni sa. v. Himachal Sahu and Ors. A.I.R. 1981 Orissa 177.
(iv) GulamAbbas and Ors. v. State of U.P. and Ors. .
The occasion to consider this aspect would have arisen, if we have found that the primary test regarding question having had been directly and substantially in issue in the earlier suit' has been passed through. But, it is not so, as per our preceding discussion. Hence, there is no occasion for us to express our categoric opinion on this aspect.
46. The plaintiffs do not solely rest their claim for title to the suit-properties on the basis of the title deeds, only on the principle of res judicata. They have placed independent evidence. In the suits two survey numbers are covered by the title deeds relied on by them and to show that the survey numbers referred to by the defendants as relatable to the title deeds, lie only in lekkom 28 and are covered by the sale deed of the year 1050 M.E. The question that arises for consideration is as to whether they can be accepted by this Court. Ex.A.13 is the report of the Commissioner in O.S. No. 88 of 1958, P.W.1 spoke to it in her evidence. In Ex.A.14, the survey numbers, falling within the properties acquired under the sale deed of the year 1050 M.E., are shown with green coloured boundaries. The said survey numbers take in the survey numbers, now mentioned by the defendants as falling within the titled deeds, relied on by the plaintiffs. The properties involved in O.S. No. 88 of 1988 are shown with red or orange coloured boundaries, within the green coloured boundaries, comprising the properties acquired under the sale deed of the year 1050 M.E.P.W.1 stated that the property shown within orange coloured boundaries in Ex.A.14 is the remaining portion of lekkom 28. There was no cross-examination of P.W.1 by the defendants on these aspects, and her evidence, remains unchallenged. There was no impeachment of Ex.A.14 when P.W.1 spoke about it. There is no dispute that the properties acquired under the sale deed of the year 1050 M.E., comprised five sixth of lekkom 28.P.W.1 has also deposed that the properties involved in the present suits are lying east of lekkom 28. Here again, there was no cross examination of P.W.1 to infer a contrary position. Ex.A.14 shows the two suits survey numbers are, in fact, east of lekkom 28 in which the properties acquired under the sale deed of the year 1050 M.E., are situate in Ex.A.13, the Commissioner in O.S. No. 88 of 1958, for the purpose of finding out as to whether the properties in that suit formed part of lekkom 28, the properties acquired under the sale deed of the year 1050 M.E., ascertained the survey numbers falling within them. The following observations found in Ex.A.13 need extraction as follows:
From the lie of the property it is seen that the whole of the property covered by the sale deed of 1050 lies continuously, and in a block in the Tharuvayar hill without any natural division or separating features within it. 1050 sale deed gives only lekkom and not survey numbers. It, therefore, seems to us that the present location of the survey numbers of the property conveyed by the sale deed of 1050 M.E. in 'Azhagiapandipuram' and 'Darisanamocope' villages is due only to the subsequent changes in Government records. Of these survey numbers, S. Nos. 2682/1, 2 and 3 are in Darisanamcope village, while S. Nos. 2902/1, 2 and 3, 2903, 2905, 2906, 2908, 2909, 2910, 2911/ 1 and 2,2998/2 and 3 and 2917/2=3 have been brought in the adjacent 'Azhagiapandipuram' village.
The above observations in Ex.A.13 and the location of the survey numbers found in Ex.A.14 clearly demonstrate that the survey numbers, which the defendants mention as relatable to the title deeds, could not so relate, but on the other hand they are survey numbers, falling within the properties acquired under the sale deed of the year 1050 M.E., and in lekkom 28.
47. We find that the evidence of D.W.1, though prevaricating, supports the case of the plaintiffs on the relevant aspects, to a very great extent. He has deposed as follows in cross-examination:
The suit-properties are beyond lekkom 28. The properties comprised in the four title deeds are a contiguous block. The property acquired under the sale deed of the year 1050 M.E., is part of lekkom 28. The suit-properties are on the eastern side of lekkom 28 property.
In one place, D.W.1 would state that the properties covered by the title deeds are within lekkom 28. In another place, he would say that the properties covered by the title deeds are not within, but are east of loekkom 28. He has further admitted that the two suits survey numbers, namely, S. Nos. 2917/1 and 2898/1 are east of lekkom 28. That is exactly what Ex.A.14 bears out. He would assert that survey Numbers 2898/2 and 3 and 2917/3 are not within lekkom 28. But, Ex.A.14 shows the contrary position and as already noted, there was no impeachment of Ex.A.14, when P.W.1 spoke about it. The court below has assigned a peculiar reason for discrediting Ex.A.14. It says that it was not prepared on the basis of any approved plan issued by either the State of Tamil Nadu or Kerala. No such line of thinking was expressed by the defendants, when Ex.A.14 was marked by P.W.1 and when she spoke about it. This reasoning of the Court below to discredit Ex.A.14 is unwarranted and cannot be accepted.
48. The Court below has placed reliance on Ex.B.12, the sketch prepared on 29.6.1118 M.E., to show the position of lekkom 28 in Tovaln Taluq. This plan shows that Survey Numbers 2917 and 2902 to 2911 were outside lekkom 28. But, we find that this sketch Ex.B.12 is not supported by any report and its contents have not been explained by the evidence of any person. We are not able to attach any significance to this bare sketch, especially in view of the other positive evidence available in the case; supporting the plaintiffs and militating against the pleas of the defendants.
49. The court below has placed reliance on the proceedings relating to claim for pata by W.A. Cox before the Forest settlement Officer in the year 1091 M.E., to say that the claim was for the properties covered by the title deeds and those properties are in the survey numbers mentioned by the title deeds and those properties are in the survey numbers mentioned by the defendants as relatable to the title deeds. Page 142 of the Forest Settlement Register has been marked as Ex.B.2. A photostat copy there of has been marked as Ex.B.3. These documents do mention that the survey numbers 2903, 2905, 2906, 2910 and 2911 are relatable to the title deeds, relied on by the plaintiffs. But, we find that Ex.B.2 suffers from inherent infirmities, and it is not possible to annex any credence to it on account of the same. D.W.1, who spoke about Ex.B.2 admits that in Ex.B.2 are not in there same hand. The suggestion on behalf of the plaintiffs to D.W.1 that the entries in certain columns in Ex.B.2 were subsequent interpolations cannot be ruled out as totally lacking in basis. Ex.B.2 does not bear any seal. Ex.B.2 has been summoned from the collector. But, none therefrom has been examined to vouchsafe its authenticity. D.W.1's experience in the matter is of recent origin and certainly he cannot claim to know the history of the case prior to his service experience. The most significant aspect is that P.W.1 was not at all confronted with Ex.B.2 and was not called upon to explain the entries found therein. Equally so, the other proceedings relating to earlier claim for patta, were not at all put to her and there was no call to explain. Even otherwise, in our assessment, they do not by themselves clinch the issue on the question of title claimed by the plaintiffs in view of the other satisfactory and convincing evidence exposed in the case, which evidence we have discussed in the proceeding paragraphs d.W.1 himself has admitted that the properties in the present suit, namely, Survey Numbers 2917 and 2898/1 (which according to the plaintiffs are properties covered by the title deeds) are east of lekkom 28. It will be futile to take note of ambiguous documents, many features there in remaining unexplained, to deny the title claimed by the plaintiffs. There are sufficient materials supporting and substantiating the case of the plaintiffs that they have title to the suit-properties, derived from the title deeds relied on by them. With regard to properties covered by title deed No. 15, the defendants have conceded the claim of the plaintiffs.
50. The Court below has counted against the plaintiffs and in support of the defendants, the mentioning of the village Azhakiapandipuram village in the sale deeds by the father of the plaintiffs in favour of third parties, which sales, according to the plaintiffs, were only of properties in lekkom 28 and covered by the sale deed of the year 1050 M.E., but which, according to the defendants, are the properties covered by the title deeds. The copies of the sale deeds to third parties by the father of the plaintiffs have been marked in the case as Ex.B.4, B.5 and B.6. The properties covered by the title deeds are in Azhakinpandipuram village. P.W.1 deposed that properties comprised in lekkom 28 were formerly in Therisanamcope village. It is true in Ex.B.4, B.5 and B.6, the village of Azhakiapandipuram is mentioned. But, in Ex.B.5 and B.6, lekkom 28 is specifically mentioned and further the survey numbers mentioned in Ex.B.4, B.5 and B.6 have been found to be within the properties acquired under the sale deed of the year 1050 M.E. and they could not relate the title deeds. When such is the factual position, which has emerged from the evidence on record, it is not possible, by the mere mentioning of the Village of Azhakiapandipuram in Ex.B.4, B.5 and B.6, to infer that they covered only the properties acquired under the title deeds. There is no evidence produced by the defendants clarifying this position to support their case.
51. Mr. S. Chellaswami, learned Counsel for the plaintiffs, would place reliance on the proceedings in and arising out of O.S. No. 98 of 1980, on the file of the Subordinate Judge, Nagercoil, which was a suit laid by the licence from the plaintiffs and their father against the present defendants, with regard to a portion of the properties covered by the title deeds Numbers 37 and 94 and in Survey Number 2898/1. that was a suit for a declaration of title and for injunction and for damages. The controversy therein centered around the question as to whether that suit-property was covered by the title deeds, as claimed by the plaintiffs therein, or forest land as intended by the defendants. It was found that the said suit-property was not a forest land, but, on the other hand, was a private land, granted under the title deeds and the said suit was decreed as prayed for. The Appeal by the defendants was dismissed. Copies of the judgment and decree in O.S. No. 98 of 1980 have been marked in the present case as Ex.A.2 and A.23 and copy of the judgment in A.S. No. 128 of 1983, on the file of the court below, has been marked as Ex.A.7. Learned Counsel for the plaintiffs would submit that though the position may not strictly come within the rigour of the principle of res judicata Under Section 11 of the Code of Civil Procedure, yet the decisions in the said suit may be relevant under the Evidence Act. For this purpose, learned Counsel for the plaintiffs, places reliance on the following pronouncements; (i) Gopi Sundari Dasi and Ors., v. Kherod Gobinda Chowdhury and Ors. A.I.R. 1925 Cal. 194; (ii) Shamsunder Kuer v. Ramkhelawan Sah and Ors. A.I.R. 1929 Pat. 739; (iii) Yeka Rajamma v. Pydighantan Buthiramayya (1967)2 An.W.R. 349 (352).
In our view, it is unnecessary to advert to and adjudicate upon this plea, for the simple reason, we have found sound bases on facts to support the case of the plaintiffs for title to the suit-properties. Hence, we have refrained from going into this plea.
52. We have found that the plaintiffs have title to the suit-properties on the bias of the title deeds. We have also found that the plaintiffs and before them their predecessors in title have been in possession of the suit-properties for over the statutory period, adverse to the right and title, if any, of the defendants, and thereby they have perfected title by prescription. The possession of the plaintiffs does not appear to have been disturbed and taken away at any point of time, though there have been complaints of interference with that possession, which necessitated the plaintiffs to resort to the litigation. Hence, the plaintiffs are entitled to the declaration of title to the suit-properties and the permanent injunction, which they asked for. As a result, these two Appeals are allowed; the common judgment and the separate decrees of the Court below in O.S. Nos. 66 and 67 of 1986 are set aside and the said suits will stand decreed, as prayed for. The plaintiffs are entitled to costs, both in the suits and in these Appeals.