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1950 Supreme(Bom) 70
IN THE HIGH COURT OF BOMBAY
FULL BENCH
Chagla, C.J., Gajendragadkar P.B. and Shah J.C. , JJ.
Appellants: Ramappa Vanappa Akale and Ors.
Vs.
Respondent: Laxman Malyappa Akale
Second Appeal No. 576 of 1949
Decided On: 17.08.1950
Counsels:
For Appellant/Petitioner/Plaintiff: R.S. Abhyankar, Adv.
For Respondents/Defendant: W.D. Adake and R.G. Samant, Advs.
Headnote:A.Adverse possession - sanadi land - during a tahasil inquiry name of plaintiff was recorded as navavala in 1935 in respect of the suit land - plaintiff claiming recovery of possession handed over to defendant by oral tenancy in 1936-37 - The plaintiffs father died on 9-11-1926 - defendant claiming to be in possession since 1904 by virtue of partition - both lower courts decree the suit in favour of plaintiff on the point of partition - contention: suit was barred by limitation due to adverse possession of defendants - plea of limitation was allowed to be raised at second appeal - matter remanded back for finding to be recorded on the issue of adverse possession. (para no. 1)
B.Second appeal - plea - plea of limitation and adverse possession by the defendant - for the first time in second appeal - plea was allowed to be argued due to judgment of supreme court which overruled earlier longstanding view and held that the plea of limitation was applicable even to inam lands - matter send back to frame issue and give finding on the point of limitation by the High Court. (para 2)
C.Death of inamdar – heir-ship inquiry pending - nature of sanadi property - contention: on the death of inamdar the sanadi property automatically reverted to state and when state again entered name of heir as navavala, it was given afresh, limitation be counted from insertion of plaintiff s name in revenue record - Question for determination: nature of sanadi property - sanadi property is life estate of holder and after his death reverts to state - vat hukum No. 76 of 1873 (p. 925) and no. 19 of 1887 (p. 902) considered ; vat-hukum is No. 10 of 1898 (p. 894) vat-hukum No. 44 of 1905 (p. 787) relied upon - in the present matter, the sanadi inam suit land did not automatically reverted to the State on the death of the plaintiff s father - held, Clause (7) of vat-hukum No. 76 of 1873 means that the sanadi property is not the absolute private property Of the sanadi because his title to it is subject to several restrictions of a severe type. (para no. 15)
D.Limitation - adverse possession - suit for recovery of possession - Question: "Whether the defendants prove that they were in possession of the property adversely to the plaintiff for more than twelve years before the institution of the suit" - finding in favour of the defendant - matter placed before full bench - the period of limitation for adverse possession was thirty years in the State of Kolhapur until 1922 - in 1922 that the Indian Limitation Act in that behalf was made expressly applicable to Kolhapur - contention: three years of grace were allowed to parties affected by the change of the period of limitation from thirty to twelve years and since the plaintiffs father took no steps to assert his title within three years after 1929, it may be that even the title of the plaintiffs father was barred by adverse possession before he died in 1926 - held, vat hukums do not support the plaintiffs contention that the property in suit reverted to the State after his fathers death, the plaintiffs suit is beyond time. (para 20)
Gajendragadkar, J.
1. This is a second appeal which has come to this Court from Kolhapur and it has been placed before a Pull Bench because the learned Chief Justice of the Kolhapur High Court had directed that it should be heard by a Full Bench on the ground that the question of limitation which it raised was of some importance. The question of limitation ariees in this way :
2. The property in suit is a piece of land attached to the office of the village sanadi and it originally belonged to the family of the plaintiff and the defendants. The sanadi holding this land was liable to render service as such sanadi in the village chavdi of Mardi. It would appear that some time in 1904 there was a partition in the family of the sanadis and the land now in suit fell to the share of the branch of defendant 1. Since then defendant 1 has been in possession of it. The plaintiffs father died on 9-11-1926. Thereafter a revenue inquiry was held as a result of which the name of the present plaintiff was entered as a Navavala on l 6-1935. On 1-12-1941, the present suit was filed by the plaintiff claiming possession of the property in suit. His case was that after his name was entered as a Navavala he obtained possession of the property and let it out to the defendants on oral tenancy in 1936-37. That is how he made his claim for the possession of the land. The defence was that the property had been assigned to the branch of the defendants in 1904 and as such they were lawfully in possession. Both the Courts held that this property could not have been validly partitioned in 1904 because a vat-hukum had been passed prohibiting the partition of such lands. On this view of the matter, the plaintiffs claim had been decreed in both the Courts below. When the defendants took their second appeal before the Kolhapur High Court, they were allowed to urge a point of limitation, and by an interim judgment delivered on 7-4-1948 the Kolhapur High Court sent back the case for the determination of the question of limitation. In this interlocutory judgment it was observed that the plea which was allowed to be raised had not been taken in the Courts below ; but the defendants were entitled to this indulgence in view of the fact that until 1944 the Kolhapur High Court had consistently held that limitation was inapplicable to inam Jands and it was only in 1944 that the Supreme Oourt of Kolhapue by its judgment overruled this longstanding view and held that the plea of limitation was applicable even to inam lands. The learned Judges tf the Kolhapur High Court were disposed to accede to the request of the defendants to permit the plea of limitation to be raised in second appeal because they thought that the defendants had been misled by the view which the High Court had been taking till then on this question. The issue sent down by this interlocutory judgment was :
"Whether the defendants prove that they were in possession of the property adversely to the plaintiff for more than twelve years before the institution of the suit."
After remand parties have led evidence and both the Courts have found in favour of the defendants on this issue, When this finding was returned to the High Court and the matter was argued before Chavan J., that learned Judge took the view that there were some decisions of the Kolhapur High Oourt which supported the plaintiffs plea that there can be no question of adverse possession against the plaintiff in this ease because the oauae of action accrued to him only when he was recognised as a Navavala ; that his right to claim possession of the property in fact arose on such recognition and therefore there can be no adverse possession against him for more than twelve years under Article 144, since his suit was filed within twelve years from the date when his name was ordered to be entered as Navavala. Chavan J. thereupon directed that the papers should be placed before the learned Chief Justice of Kolhapur High Court in order that th
