The doctrine of tacking is not permissible where the possession is not in privity with the title of the predecessor.

J.G. Chitre, J.

1. The appellants are hereby assailing the correctness, propriety and legality of the decree passed by the Additional Judge to the Court of District Judge, Indore in Regular Civil Appeal No. 75-A of 1987 by which he set aside the decree which was passed by IIIrd Civil Judge Class II, Indore in the matter of Civil Suit No. 69-A of 1974 which was in favour of the appellants.

2. This appeal has been admitted on following substantial questions:

(1) Whether in view of the facts and circumstances of the case the doctrine of tacking is attracted and whether the lower Appellate Court was right in holding that the respondent No. 1 had perfected his title by adverse possession on that account ?

(2) Whether in the facts and circumstances of the case the first Appellate Court was right in law in concluding that the respondent No. 1 had become the legal owner of the suit property by operation of Section 15(1)(d) of the Hindu Succession Act, 1956 on the death of Saibai ?

3. Shri Upadhyaya, learned Counsel for the appellants by making reference to the evidence on record submitted that respondent Laxman has not proved that he became the owner of the suit property by his adverse possession. He submitted further that the first Appellate Court committed the error of law in coming to the conclusion that respondent Laxman inherited the property of Saibai in view of Section 15(1)(d) of Hindu Succession Act, 1956 (hereinafter referred to as Succession Act for convenience). He also submitted that doctrine of "tacking" does not apply in the present case because it is inconsistent with evidence on record. He made reference to Section 93 of Transfer of Property Act in this context.

4. Shri B.K. Joshi learned Counsel appearing for respondent also made a reference to the evidence on record and submitted that deceased Krishnarao was never in possession of the suit property because he was away from suit property and residing at Pune from the year 1947 till his death. He submitted further that Saibai was in continuous peaceful and un-obstruction possession hostile to the title of Krishnarao since 1935 till her death and therefore she had acquired ownership in respect of the suit property by adverse possession. He further submitted that respondent-Laxman falls in the category of heirs mentioned in Section 15(1)(d) Succession Act and therefore he was owner of the suit property. He justified the impugned decree of the first Appellate Court as correct, proper and legal,

5. Section 93 of Transfer of Property Act reads :

XXX XXX XXX XXX XXX

6. It is obvious from the language of Section 93 that it relates generally to transaction of mortgage and it relates to Article 144 of the Limitation Act, 1908 which corresponds to Article 65 of Limitation Act of 1963. Article 65 of Limitation Act, 1963 (hereinafter referred to as New Limitation Act for convenience), reads:-

Description of suit Period of Time from which period limitation begins to run

65. For possession of Twelve When the possession of immovable property years the defendant becomes or any interest there- adverse to the plaintiff, in based on title.

It provides the period of limitation as 12 years from the time when the possession of defendant becomes adverse to the plaintiff. Section 2(4) of the Limitation Act defines defendant as "defendant" includes any person from or through whom a defendant derives his liability to be sued. Section 2(e) defines defendant as any person whose estate is represented by the defendant either in the capacity of an executor, or other representative or administrator.

7. Shri Upadhyaya placed reliance on the judgment of Bombay High Court in the matter of Hamidmiya Sarfuddin and Ors. v. Nagindas Jivanji and Ors. (AIR 1933 Bombay 217) wherein the Bombay High Court held that in order to constitute adverse possession, possession of distinct trespassers cannot be tacked on as the distinct trespassers cannot be deemed to claim through each other.

8. Shri Upadhyaya further placed