http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: GURBINDER SINGH AND ANOTHER

       Vs.

RESPONDENT: LAL SINGH AND ANOTHER

DATE OF JUDGMENT: 12/02/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1965 AIR 1553            1965 SCR  (3)  63

ACT: Indian Limitation Act (9 of 1908), s. 2(4) and Arts. 142 and 144--Scope of.

HEADNOTE:    One  Mst.  Raj  Kaur  was  holding   certain   lands   on different  tenures under the Raja of Faridkot. She  had  two daughters. She adopted the son of one of them and put him in possession  of all the lands. He transferred a part  of  the lands  to  the second respondent who was son  of  the  other daughter of Raj Kaur. After Raj Kaur’s dearth the Raja filed suits  for possession of the land, and in execution  of  the decree  he obtained in those suits, took possession  of  the entire land, in October, 1938. He then transferred the land, but  the  transferee was dispossessed by the  appellants  in June 1950, in execution of a decree they obtained, in a suit for  preemption  filed by them against the  transferee.  The second respondent’s mother had died in 1938 and her sons the first  and second respondents, filed a suit for   possession of   the   entire  land  in February 1950, as heirs  of  Raj Kaur,  but it was decreed only to the extent of  their  half share, and the decree was affirmed by the High Court.     In  the appeal to this Court it was contended  that  the suit  was  governed either by Art. 142 or Art.  144  of  the Indian Limitation Act, 1908, and on either basis, was barred by time. HELD: (i) Article 142 would not be attracted to the suit.     In order that the article may be attracted the plaintiff must  initially have been in possession of the property  and should  have been dispossessed by the defendant or some  one through  whom  the defendant claims  or  alternatively,  the plaintiff  should  have discontinued possession. It  was  no one’s case that the first respondent was ever in  possession of   the  property.  As  regards  the  second   respondent’s possession at one time of a part of the property, it was  by reason  of a transfer by the adopted son. The claim  in  the instant case, however, was by succession, under a  different title   altogether,  and  so  it  must  be  held  that   the plaintiffs-respondents, as heirs of Raj Kaur, were never  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

possession of the land. [65H]     (ii)  Article  144 was applicable to the suit,  but  the suit was not barred by time.     Adverse  possession against the respondents  started  in October. 1938, when the Raja took possession of the land. To that   adverse  possession  could  be  added  that  of   his transferee  and  that  of  the appellants who had  preempted the  lands  under the decree obtained by  them  against  the transferee. But, the sum total of the adverse possession  of all those persons at the date of the respondent’s suit would be  less  than 12 years. The  adverse  possession   of   the adopted son could not be tacked on to the adverse possession of  the Raja and those who claim through him, because, in  a suit  to  which Art 144 is attracted, the burden is  on  the defendant to establish that he was in adverse possession for 12  years  before the date of suit, and for  computation  of that period, he can avail himself of the adverse  possession of  any  person or persons through whom he claims   but  not the adverse  possession  of  independent  tres- 64 passers. The starting point of limitation in Art. 144 is the date when the possession of the defendant becomes adverse to the  plaintiff.  The  gist of the  definition  of  the  word "defendant"  in  s. 2(4) of the Act is the  existence  of  a jural relationship between the different persons referred to in  the definition, and there can be no  jural  relationship between two independent trespassers. [66 F-H; 68C; 70B]. Ramayya v. Kotamma, (1921) I.L.R. 45 Mad. 370, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 431 of 1963. Appeal  from the judgment and decree dated May 21,  1958  of the  Punjab  High Court in Civil Regular Second  Appeal  No. 263-P of 1952. Tarachand Brijmohanlal, for the appellants.     B.R.L.  lyengar,  S.K.  Mehta and K.L.  Mehta,  for  the respondents. The Judgment of the Court was delivered by     Mudholkar,  J.  The only question for  consideration  in this appeal by certificate from the High Court of Punjab  is whether   the   suit  for  possession  instituted   by   the respondents  Lal  Singh  and Pratap Singh  is  within  time. According to the appellants the suit is governed not by art. 141  of the Limitation Act, 1908 (9 of 1908) as held by  the High  Court but either by art. 142 or by art. 144 and is  on that basis barred by time. While it is conceded on behalf of the respondents that the suit is not governed by art. 141 it is contended that it is governed by art. 144 and not by art. 142  and  is  within  time.  In  order  to  appreciate   the contentions  it is necessary to set out the  relevant  facts which are no longer in dispute.     Mst. Raj Kaur was in possession of 851 kanals 18  marlas of  land situate in village Dhaipai in the former  State  of Faridkot.  Out of this land 481 kanals 7 marlas was  in  her possession as occupancy tenant, the landlord being the  Raja of  Faridkot while the remaining land was held by  Smt.  Raj Kaur as Adna Malik, the Aala malik again being the said Raja of Faridkot. In Samvat 1953 (A.D.1896) Smt. Raj Kaur who had two daughters Prem Kaur and Mahan Kaur, adopted the former’s son  Bakshi Singh and put him in possession of the whole  of the  land.  Bakshi  Singh transferred part of  the  land  to Pratap  Singh, second son of Mahan Kaur, who  is  respondent No.  2 in the appeal. Mahan Kaur had one more son Lal  Singh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

and he is respondent No. 1 in this appeal.    In  the  year  1915 the Raja of  Faridkot  filed  a  suit against Bakshi Singh and Raj Kaur in the court of Sub-Judge, Faridkot for a declaration that the adoption of Bakshi Singh was invalid. This suit was decreed on February 9, 1916.  Raj Kaur died on August 14, 1930. On February 19, 1934 the  Raja filed  two suits against Bakshi Singh and Pratap  Singh  for possession  of the aforementioned lands, one  pertaining  to the  land  of which Raj Kaur was occupancy  tenant  and  the other  for  that of the land of which she  was  Adna  malik. These suits were decreed on March 12, 1938 and in  execution of the decrees obtained in these suits the Raja 65 took possession of the entire land in October 1938. On April 7,  1948 he sold the entire land along with some other  land to  one Kehar Singh for Rs. 84,357-5-0. Thereupon  Gurbinder Singh and Balbinder Singh. who are the appellants before us, filed a suit for pre-emption of the land against Kehar Singh and  obtained a decree     in their favour. In execution  of that  decree  they got possession of the land  on  June  22, 1950.     On October 20, 1948 Mst. Prem Kaur instituted a suit for possession of the entire land on the ground that she was the legal  heir of Raj Kaur against Kehar Singh and the Raja  of Faridkot.  Later she impleaded the appellants as  defendants to  that  suit  and  discharged the  Raja  of  Faridkot.  On February 17, 1950, Lal Singh, respondent No. 1, filed a suit for  possession  of  the entire land  against  the  Raja  of Faridkot  and Kehar Singh. To that suit he joined Prem  Kaur and Pratap Singh as defendants. Later, however, Pratap Singh was   transposed  as  a  plaintiff.  Both  the  suits   were consolidated and were tried together. The suit of Prem  Kaur was dismissed by the trial court but that of the respondents was  decreed  to the extent of half share in  the  property. Prem  Kaur and the appellants preferred appeals  before  the District Court but that court dismissed both the appeals.  A second appeal was taken by the appellants as well as by Prem Kaur  to the High Court and cross-objections were  preferred by  the respondents. The High Court dismissed these  appeals as well as the cross-objections.     In  the absence of any appeal by Prem Kaur  against  the decision  of the High Court confirming the dismissal of  her suit  we have only to consider the claim of the  respondents to  half  the  property left by Raj Kaur.  Their  claim  was resisted by the appellants on several grounds in the  courts below.  Before us, however, only one ground is  pressed  and that  is,  the  suit is barred  by  limitation.  As  already stated,  according to the appellants, the suit  is  governed either by art. 142 or by art. 144 of the Limitation Act  and not  by art. 141. Mr. lyengar for the respondents. does  not rely  upon art. 141 at all. He also contends that  art.  142 has no application and that the suit is governed by art. 144 only.  Mr.  Tarachand Brijmohanlal for the  appellants  also relied on art. 144 in the alternative.     In order  that art. 142 is attracted the plaintiff  must initially have been in possession of the property and should have  been dispossessed by the defendant or someone  through whom  the  defendants claim or alternatively  the  plaintiff should  have  discontinued possession. It is no  one’s  case that Lal Singh ever was in possession of the property. It is true  that  Pratap Singh was in possession of  part  of  the property--which particular part we do not know--by reason of a  transfer  thereof in his favour by Bakshi Singh.  In  the present  suit both Lal Singh and Pratap Singh  assert  their claim to property by success on in accordance with the rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

contained  in the dastur ul amal whereas the  possession  of Pratap Singh for some 66 time  was under a different title altogether. So far as  the present  suit is concerned it must, therefore, be said  that the  plaintiffs--respondents  were never  in  possession  as heirs  of  Raj Kaur and consequently art. 142 would  not  be attracted to their suit.     It  is in these circumstances that we have  to  consider whether  under  art.  144 the suit is barred  by  time.  The starting  point of limitation set out in col. 3 of art.  144 is as follows:       "When the possession of the defendant becomes  adverse to the plaintiff". To recapitulate the events. Raj Kaur died on August 14, 1930 whereupon under dastur-ul-amal her daughters  Prem Kaur  and Mahan  Kaur became entitled to the possession of  the  land. According  to the appellants the daughters succeeding  their mother  took an absolute estate. Assuming that is  so,  what would  be the position? As already stated, Bakshi Singh  and Pratap Singh were in possession of the entire land belonging to Raj Kaur. Ignoring for the time being their  relationship with Raj Kaur, what can be said is that they were  adversely in  possession  to the true owners, that is, Prem  Kaur  and Mahan  Kaur, daughters of Raj Kaur as from August 14,  1930. Before, however, they could perfect their title against Prem Kaur  and  Mahan  Kaur  the  Raja  instituted  a  suit   for possession,  obtained  a  decree  thereunder  and   actually entered into possession to the entire land in October, 1938. Though  the Raja obtained possession under a decree of   the court  he was in the eye of law nothing but a trespasser  in so far as the heirs of Raj Kaur, her daughters Prem Kaur and Mahan  Kaur were concerned. Mahan Kaur had in fact  died  on July  13,  1938, i.e. before the Raja  obtained  possession. Therefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the  respondents Lal  Singh  and Pratap Singh as from  October,  1938.  Kehar Singh who was a transferee from the Raja stood in the Raja’s position   and  got  the  benefit  of  the  Raja’s   adverse possession. Similarly the appellants who had preempted these lands  under  the decree obtained against  Kehar  Singh  got advantage not only of the Raja’s adverse possession but also of Kehar Singh’s. The sum total of the adverse possession of these  three  persons at the date of the  respondent’s  suit would,   however,  be  less  than  12  years  and   so   the respondents’ suit could not be said to be barred by art. 144 if the starting point of limitation is taken to be some  day in October, 1938.     Mr.   Tarachand  Brijmohanlal,  however,   advanced   an interesting argument to the effect that if persons  entitled to  immediate  possession of land are somehow  kept  out  of possession  may be by different trespassers for a period  of 12  years  or over, their suit will be barred  by  time.  He points out that as from the death of Raj Kaur her daughters, through one of whom the respondents claim. were kept out  of possession  by  trespassers and that from the  date  of  Raj Kaur’s death right up to the date of the respondents 67 suit,  that is, for a period of nearly 20 years  trespassers were in possession of Mahan Kaur’s, and after her death, the respondents  share in the land, their suit must therefore be regarded’  as  barred by time. In other  words  the  learned counsel  wants to tack on the adverse possession  of  Bakshi Singh and Pratap Singh to the adverse possession of the Raja and  those  who  claim  through  him.  In  support  of   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

contention  reliance  is placed by learned  counsel  on  the decision  in Ramayya v. Kotamma(1). In order  to  appreciate what was decided in that case a brief resume of the facts of that  case is necessary. Mallabattudu, the last male  holder of  the  properties to which the suit related, died  in  the ’year 1889 leaving two daughters Ramamma and Govindamma. The former  died in 1914. The latter surrendered her  estate  to her  two sons. The plaintiff who was a transferee  from  the sons  of  Govindamma  instituted  a  suit  for  recovery  of possession of Mallabattudu’s property against Punnayya,  the son of Ramamma to whom Mallabattudu had made an oral gift of his  properties  two years before his  death.  Punnayya  was minor at the date of gift and his eider brother  Subbarayudu was managing the property on his behalf. Punnayya,  however, died in 1894 while still a minor and thereafter his brothers Subbarayudu  and  two  others  were  in  possession  of  the property.  It  would seem that the other brothers  died  and Subbarayudu  was  the last surviving  member  of  Punnayya’s family. Upon Subbarayudu’s death the properties were sold by his  daughters  to  the  third  defendant.  The  plaintiffs- appellants  suit failed on the ground of limitation. It  was argued  on his behalf in the second appeal before  the  High Court that as the gift to Punnayya was oral it was  invalid, that consequently Punnayya was in possession as  trespasser, that on Punnayya’s death his heir would be his mother,  that as   Subbarayudu  continued  in   possession   Subbarayudu’s possession  was also that of a trespasser, that  as  neither Subbarayudu  nor Punnayya completed possession for 12  years they  could  not  tack  on one to the  other  and  that  the plaintiff  claiming through the nearest reversioner  is  not barred.  The contention for the respondents was  that  there was no break in possession so as to retest the properties in the original owners, that Punnayya and Subbarayudu cannot be treated as successive trespassers and that in any event  the real  owner having been out of possession for over 12  years the suit was barred by limitation. The High Court  following the   decision   of  Mookerjee  J.  in  Mohendra   Nath   v. Shamsunnessa(3)held that time begins to run against the last full owner if he himself was dispossessed and the  operation of the law of limitation would not :be arrested by the  fact that on his death he was succeeded by his widow, daughter or mother,  as the cause of action cannot be prolonged  by  the mere  transfer  of  title.  It  may  be  mentioned  that  as Mallabattudu  had given up possession to Punnayya  under  an invalid  gift  art. 142 of the Limitation  Act  was  clearly attracted. The (1) (1921) I.L.R. 45 Mad. 370. (2) (1941) 21 C.L.J. 757, 164. 68 sons of Govindamma from whom the appellant had purchased the suit properties claimed through Mallabattudu and since  time began  to  run against him from 1887  when  he  discontinued possession  it did not cease to run by the mere fact of  his death. In a suit to which that article applies the plaintiff has  to  prove his possession within 12 years of  his  suit. Therefore,  so long as the total period of  the  plaintiff’s exclusion from possession is, at the date of the plaintiff’s suit,  for a period of 12 years or over, the fact that  this exclusion  was  by different trespassers will not  help  the plaintiff  provided there was a continuity in the period  of exclusion.  That decision is not applicable to the facts  of the  case  before us. This is a suit to which  art.  144  is attracted  and the burden is on the defendant  to  establish that  he was in adverse possession for 12 years  before  the date of suit and for computation of this period he can avail

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

of  the adverse possession of any person or persons  through whom   he  claims  --but  not  the  adverse  possession   of independent trespassers.     In so far as the adverse possession of Bakshi Singh  and Pratap  Singh  is concerned it began upon the death  of  Raj Kaur  and not during her life time. That being so, art.  142 cannot  possibly  be attracted whereas the  Madras  decision turns  upon  a  case to which art. 142  applied.  No  doubt, there, on behalf of the plaintiff appellant it was argued on the  authority  of Agency Co. v. Short(’) that in  cases  of successive trespassers limitation ceases to run against  the lawful owner of the land after an intruder has  relinquished his  possession;  that on the death of Punnayya it  must  be taken  that there was an interruption in the possession  and that  there  was an interval between  Punnayya’s  death  and Subbarayudu’s  taking  possession in his own  right  however minute  the interval may be and that except in the  case  of succession  or revolution all other cases would fall  within the principle enunciated in Agency Co’s case(1). The learned Judges  did not accept the contention but relying  upon  the decision in Willis v. Earl Howe(2) and a passage ’in Dart on Vendors  and Purchasers, Vol. 17th ed. p. 474 held that  the suit  was  barred  by time. It may be pointed  out  that  on Punnayya’s  death his mother would be the heir and  that  it was  established in that case that she was living  with  his brother  Subbarayudu  and his  other  brothers.  Subbarayudu would  therefore, be a presumptive reversioner on the  death of his mother and there was evidence to show that she was  a consenting  party  to Subbaryudu’s enjoying  the  properties after Punnayya’s death. It is under these circumstances that the  High Court found it difficult to hold that there was  a fresh  trespass by Subbarayudu after the death of  Punnayya. On the other hand, according to them, there was a continuity of  possession  because  the person who  continued  to  hold possession  was the presumptive heir of the  deceased.  From the facts of the case it will be clear that what was  tacked on was not the possession of independent trespassers at all. In the case before us what  (1)[1888] 13 A.C. 793. (2) [1893] 2 Ch. 545. 69 is  being  sought to be tacked on to the possession  of  the Raja  and those who claim through him is the  possession  of Bakshi Singh and Pratap Singh. The Raja in his suit  against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh   to   possession  on  the  ground  that   they   were trespassers.  As  it has turned out, the possession  of  the Raja, though obtained under the decree of a civil court, was in  itself a trespass on the rights of the persons who  were in  law entitled to possession of property. Thus this  is  a case   of   one  trespasser  trespassing   against   another trespasser.  There  is no connection between  the  two  and, therefore,  in law their possession cannot be tacked  on  to one  another.  As  pointed  out  by  Varadachariar  J.,   in Rajagopala Naidu v. Ramasubramania Ayyar(1).                     "Further  the  doctrine  of  independent               trespassers will come in only when the  second               man  trespasses  upon the  possession  of  the               first or the first man abandons possession." Where  it applies the principle laid down in Agency  Co’s(1) case-would  apply and preclude the tacking of possession  of successive  trespassers. The following observations of  Lord Macnaghten in        that case are pertinent and run thus:               "They  are of opinion that if a person  enters               upon the  land of another and holds possession

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

             for a time, and then,  without having acquired               title    under    the    statute,     abandons               possession,   the  rightful  owner,   on   the               abandonment, is in   the same position in  all               respects  as he was before the intrusion  took               place.  There  is no one against whom  he  can               bring an action. He cannot make any entry upon               himself.  There is no positive enactment,  nor               is   there  any  principle    of  law.   which               requires  him  to  do any act.  to  issue  any               notice or to perform ,my ’ceremony in order to               rehabilitate  himself.  No  new  departure  is               necessary.  The  possession of  the  intruder,               ineffectual  for the purpose  or  transferring               title,  ceases  upon  its  abandonment  to  be               effectual      for  any purpose. It  does  not               leave  behind it any cloud on   the  title  of               the  rightful owner, or any secret process  at               work for the possible benefit in time to  come               of some casual   interloper or lucky  vagrant.               There  is not, in their Lord  ships’  opinion,               any  analogy between the case  supposed    and               the case of successive disabilities  mentioned               in the   statute. There the statute ’continues               to   run’  because  there  is  a   person   in               possession in whose favour it is running."     This view has not been departed from in any case. At any rate  none was brought to our notice where it has  not  been followed. Apart from that what we are concerned with is  the language used by the legislature in the third column of art. 144.  The starting point of limitation there stated  is  the date when the possession of (1) A.LR. [1935] Mad. 449. 70 the  defendant  becomes adverse to the plaintiff.  The  word "defendant"  is  defined in s. 2(4) of  the  Limitation  Act thus: "’defendant’  includes any person from or  through   whom  a defendant derives his liability to be used". No doubt, this is an inclusive definition but the gist of it is  the existence of a jural relationship between  different persons.  There  can be no jural  relationship  between  two independent  trespassers.  Therefore, where a  defendant  in possession of property is sued by a person who has title  to it  but is out of possession what he has to show in  defence is  that  he or anyone through whom he claims  has  been  in possession   for   more  than  the  statutory   period.   An independent trespasser not being such a person the defendant is  not entitled to tack on the previous possession of  that person to his own possession. In our opinion, therefore, the respondents’  suit  is  within time  and  has  been  rightly decreed  by  the courts below. We dismiss this  appeal  with costs. Appeal dismissed. 71