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PETITIONER: M.S.JAGADAMBAL

       Vs.

RESPONDENT: SOUTHERN INDIAN EDUCATION TRUST & ORS

DATE OF JUDGMENT02/11/1987

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J)

CITATION:  1988 AIR  103            1988 SCR  (1) 722  1988 SCC  Supl.  144     JT 1987 (4)   484  1987 SCALE  (2)925

ACT:      Civil Procedure  Code, 1908:  Sections 96-100-Suit  for possession  of   property-Possession  continues  with  title holder until defendant acquires title by adverse possession- Court in  appeal does  not reverse finding of fact rested or proper appreciation of evidence.

HEADNOTE: %      The appellant’s  Husband purchased the lands in dispute under Ex.  P2 wherein  it was  recited that the property was not fetching  any income,  that irrigation from the tank had failed, and  that as  the property  was a pit which required Rs.2,000 for  filling it was sold for meeting certain family expenses.      The  appellant,   after  the   death  of  her  husband, instituted a  suit in  High Court  for recovery  of the land purchased by  her husband  and for  mesne profits  and other connected  reliefs,   alleging  that  the  property  was  in possession and  enjoyment of  her husband  during  his  life time, and  subsequently in her possession and enjoyment, and that the  neighbouring land owner, i.e. respondent No. 1 had trespassed and  encroached upon  the  suit  property  taking advantage of her helpless condition as a widow. The suit was resisted by  the respondents  contending that  the appellant had no title to the suit property and the suit was barred by time. The  respondents denied  trespass or  encroachment and set up  title in  themselves, contending  that the appellant was not  in possession  at any  time within  12  years  next before the suit.      A Single  Judge of  the  High  Court,  found  that  the appellant’s husband, during his life time, and the appellant after  her  husband’s  death  had  been  in  possession  and enjoyment of  the suit  property and  held the  title in her favour. He also held that the respondent trespassed the suit property after  measurement and  demarcation of  the land by the  Tahsildar   in  Jan/Feb,   1984,  and,  therefore,  the appellant was  in possession  within 12  years prior  to the date of filing the suit. The suit was accordingly decreed.      Aggrieved by  the judgment,  the respondents  filed  an appeal before  the Division Bench which, while affirming the

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appellant’s title to 723 the property,  held that  the appellant  had  satisfactorily established title  to the  suit property. On the question of possession, however,  it observed that the appellant had not proved her  possession of  the suit  property  at  any  time within 12  years prior  to the suit and the evidence adduced by her was vague and unacceptable. At the same time, it held that the  respondents had  not perfected  title  by  adverse possession.      In the  appeal by  special leave, it was contended that the appellate  Court had  no  jurisdiction  to  reverse  the finding of  fact properly  recorded by  the trial  Judge and that the  suit property  was a  low-lying area with deep pit where water stagnated during rainy reason and was seasonably submerged, making  it incapable of use and enjoyment and the legal presumption  was that  possession continued  with  the title holder.      Allowing the appeal, ^      HELD: 1.  Possession continues  with the  title  holder unless and  until the  defendant acquires  title by  adverse possession.  There   would  be  no  continuance  of  adverse possession when  the land  remains submerged  and when it is put out  of use  and enjoyment.  In such  a case  the  party having title  could claim  constructive possession  provided the title  had not  been extinguished  by adverse possession before the  last submergence.  There  is  no  difference  in principle  between   seasonal  submersion   and  one   which continues for a length of time. [730D-E]      Basanta Kumar  Roy v.  Secretary of  State ILR  Vol. 44 (1917) Calcutta  series 858  at 871-2 and Sarkar on Evidence Vol. 2, 13th Edn. p. 110 referred to.      In the  instant case, the appellant has proved title to the property.  The respondents  have not  acquired title  by adverse possession.  The property  as described  in the sale deed Ex.  P 2  was a  vacant land fetching no income. It was called "Pallam"  or pond  that was seasonally submerged, but it makes  little difference  in the  position of  law. As  a general rule, possession of part is in law possession of the whole, if the whole is otherwise vacant. [731D-E]      2. The  appellate court  does not  reverse a finding of fact rested  on proper  appreciation of  the oral  evidence. This is  a rule  of practice  which has  almost the force of law. [728B-C]      Sarju Pershad  v. Raja Jawaleshwari Pratap Narain Singh JUDGMENT: 724 ]1950] Vol.I SCR 781 relied on.      In the instant case, the trial judge on a consideration of every  material on record reached the conclusion that the appellant was  in possession of the property and it was only in 1954  that she was dispossessed. This conclusion was also based on  the credibility  of the  witnesses examined by the parties. The  Division Bench  reversed that  finding without due  regard   to  the   probability  of  the  case  and  the considerations which weighed with the trial judge. [728G-H]      The Division  Bench appears  to have  missed  important features which  have not  been  properly  explained  by  the respondents, namely,  about  the  western  boundary  of  the property purchased by the respondents and the discrepancy in the area of the property purchased by first respondent which has been  shown differently  in Exs.  P6, P7 and P8, and the contradictory  stand   of  DW  3,  Secretary  of  the  first respondent-trust, who was the star witness in support of the

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respondents’ case,  regarding the  first respondent’s  title and the  appellant-s possession  of the  disputed  property. While DW  3 denied  in his written statement the appellant’s allegation that  her land  was encroached by the respondents in the early part of January-February 1954, he stated before the Court  that he  did not  investigate the title and could not take  personal responsibility  for the  said  statement. This was  the final blow to the respondents’ case, which the Division Bench has failed to appreciate. [729F-H; 730A]      3. The  trial court  did not  frame an  issue as to the respondents perfecting title to the suit property by adverse possession. The  respondents did not produce any evidence in support of the plea of adverse possession. They were neither misled  in   their  approach  to  the  case  nor  denied  of opportunity to put forward their evidence. It is, therefore, not proper  at this  stage to  remand the case to enable the respondents to make good their lapse. [727G]      The Judgment of the Division Bench has therefore, to be set aside, and that of Single Judge restored. [731F]

&      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 235 of 1974.      From the  Judgment and order dated 2.8.71 of the Madras High Court in O.S.A. No. 37 of 1963. 725      S. Padmanabhan and A.T.M Sampath for the Appellant. A      M. Abdul Khadar, Mrs R. Ramachandran for Respondent No. 1.      S. Balakrishnan for Respondent No 3, 4 and 5.      The Judgment of the Court was delivered by      JAGANNATHA SHETTY,  J. This appeal by Special Leave has been preferred  against the judgment dated September 2, 1981 passed by the High Court of Madras in O.S.A. 37 of 1963.      The facts briefly stated are:      Under Exhibit  P. 2  dated May 24, 1929 Nagappa Naicker      purchased from Manicak Naickar and his sons nanja lands      in old  Survey Nos.  187 and  188 (R.S.  No.  3859)  an      extent of about 3/8 cawnie, roughly about 9 grounds for      Rs.275.  It  was  recited  in  the  document  that  the      property was  not fetching  any income, that irrigation      from the tank had failed and that as the property was a      pit which  required Rs.2,000  to fill,  it was sold for      meeting certain  family expenses.  The boundary  of the      property was  given as  north of  Government  Maclean’s      Garden, west  of the  fields of  Thanappa  Naicker  and      Srinivasa Naicker,  south of  the  field  of  Srinivasa      Naicker, and  last of  the road,  Ramanatha  Mudaliar’s      vacant land  and Masilamani  Gramani’s house. It may be      noted that the re-survey number was given as 3859.      On May  14, 1941  Nagappa died.  Jagdambal appellant is the widow  of Nagappa.  She instituted  the  suit  C.S.  No. 52/1960 which  was tried  on the original side of the Madras High Court.  The suit was for recovery of the land purchased under Ex.  P2 by her husband and for mean profits with other connected reliefs.  She alleged  that the  property  was  in possession and enjoyment of Nagappa during his life time and subsequently in  her possession  and enjoyment.  It was  her case that  neighbouring land  owner  South  India  Education Trust (’SIET’)  trespassed  and  encroached  upon  the  suit property taking  advantage of  her helpless  condition as  a widow. The SIET is the 5th defendant in the suit.      We may  now trace  the title  of the  adjoining plot of

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land owned  by the SIET. One Kuppuswami Naiker was the owner in possession of 726 a land  measuring 35  grounds 1989  sq. ft. This entire land was sold to Rani of Vuyyur for Rs. 10,000 under Ex. P6 dated July 30,  1940. In  the  schedule,  the  property  sold  was described as  R.S. No.  3859/1, 3859/  2 and part of 3859/3. The property  was also  described as  bounded  on  the  west partly by  Nagappa Naicker’s  land and  partly by Mount Road and Duraiswami  Gramani’s house.  According to the sale deed the property  sold was  only 35  grounds 1980 sq. ft. and it was marked yellow in the plan attached thereto. Under Ex. P7 dated December 24, 1953 Rani of Vuyyur sold the property she purchased under  Ex. P6  to SIET. The property was described as bearing  R.S. No. 3859/1, 3859/2 and 3859/3 part and 3872 in Teynampet  measuring about 38 grounds. In the schedule to Ex. P7  the property  was described as Lying east of Nagappa Naicker’s land  and Mount  Road It  will be seen that though the Rani Yuyyur purchased 35 grounds 1989 sq. ft. the extent mentioned in  Ex. P7  was about  38 grounds. On February 11, 1954 the  SIET exchanged  its land  under Ex.  P8  with  the property belonging to the defandants 1 to 4 in the suit. Ex. P8 recited  that the  SIET was  conveying an  extent  of  43 grounds 1324  sq. ft.  comprised in R.S. Nos. 3859;1, 3859/2 and 3859/3  and 3872  Mount Road Madras. Here again the land has been  described  as  bounded  on  the  west  by  Nagappa Naicker’s land and Mount Road. The curious thing to be noted is about  the extent of land exchanged. 38 grounds purchased by the  SIET under  Ex P7 has become 43 grounds 1324 sq. ft. in the Exchange deed Ex. P8.      The suit  was resisted  by  all  the  defendants.  They contended that  the plaintiff  has  no  title  to  the  suit property and  the suit  was barred  by time. They denied the trespass or  encroachment alleged by the plaintiff. They set up title  in themselves They particularly contended that the plaintiff was  not in possession at any time within 12 years next before the suit.      The  plaintiff  examined  in  all  seven  witnesses  as against six witnesses by the defendants.      The learned single judge after considering the material on record  held  that  Nagappa  during  life  time  and  the plaintiff after  Nagappa’s death  had been in possession and enjoyment of  the suit  property. The title was also held in her favour.  On the  question of trespass by the defendants, learned judge  with reference  to  documents  and  pleadings observed that  the defendants  trespassed the  suit property after the  measurement and  demarcation of  the land  by the Tehsildar in  January 1954.  That means,  learned judge held that the plaintiff was in posses- 727 sion within  12 years  prior to the date of filing the suit. Accordingly the  suit was  decreed with  a direction  to the defendants to vacate the suit land marked as R.S. No. 3859/4 and deliver-vacant possession to the plaintiff.      Being aggrieved  by the  judgment of learned Judge, the SIET preferred  an appeal  before the  Division Bench of the High Court.  The Division  Bench affirmed  the finding as to the plaintiff’s  title to the property. It was held that the plaintiff has satisfactory established the title to the suit property. On  the question  of possession,  however, it  was observed that  the evidence  adduced by  the  plaintiff  was vague and  unacceptable. The  plaintiff has  not proved  her possession of  the suit property at any time within 12 years prior to  the suit.  At the  same time, it was also observed that the  defendants have  not perfected  title  by  adverse

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possession. So stating the Division Bench allowed the appeal and dimissed the suit.      Hence this appeal by the plaintiff.      Mr. Padmanabhan learned counsel for the appellant urged two contentions  before us.  The first contention related to the jurisdiction  of the  appellate  court  to  reverse  the finding of  the fact  properly recorded  by the trial judge. The second contention rested on the undisputed nature of the suit property  and the  legal presumption  of possession  in favour of the title holder.      Mr. Abdul  Khader and  S Balakrishnan,  learned counsel for the respondents, urged in support of the judgment of the Division Bench. In the alternate they contended that it is a fit case  for remand  to consider  the question  of  adverse possession raised by the SIET in the pleading.      We are  not pursuaded by the alternate contention urged by learned  counsel for  the respondent. The trial court did not frame  an issue as to the defendants perfecting title to the suit  property by adverse possession. The defendants did not produce  any evidence  in support of the plea of adverse possession. It  is not  the case of the defendants that they were misled  in their  approach to  the case. It is also not their case  that they were denied opportunity to put forward their evidence.  It is, therefore, not proper for us at this stage to  remand the  case to  enable the defendants to make good their lapse.      We find considerable justification for the criticism of Mr. 728      Padmanabhan about  the manner  in  which  the  Division Bench considered  the oral  evidence in  the case. So far as the appreciation of oral testimony by the appellate court is concerned there  are two  view points.  One view is that the Court of  appeal has  undoubted duty  to review the recorded evidence and  to draw  its own inference and conclusion. The other view  is that  the Court  of appeal  must  attach  due weight to  the opinion  of  the  trial  judge  who  had  the advantage of  seeing the  witnesses and  noticing their look and manner.  The rule of practice which has almost the force of law  is that  the appellate  court  does  not  reverse  a finding of  fact rested  on proper  appreciation of the oral evidence. That  was the  view taken in Sarju Pershad v. Raja Jawaleshwari Pratap  Narain Singh  & Ors., ]1950] Vol. I SCR 781 at 783 where this Court observed:           "The question for our consideration is undoubtedly           one of  fact, the  decision of  which depends upon           the appreciation  of the  oral evidence adduced in           the case.  In such  cases, the appellate Court has           got to  bear in mind that it has not the advantage           which the  trial judge had in having the witnesses           before him  and of  observing the  manner in which           they deposed  in Court.  This certainly  does  not           mean that  when  an  appeal  lies,  on  fact,  the           appellate Court  is not  competent  to  reverse  a           finding of fact arrived at by the trial judge. The           rule is  and it is nothing more than a rule of the           practice that  when  there  is  conflict  of  oral           evidence of  the party  or any matter in issue and           the decision  hinges upon  the credibility  of the           witnesses, then  unless there  is special  feature           about the  evidence of  a particular witness which           has escaped  the trial judges notice or there is a           sufficient balance  of improbability  to  displace           his opinion  as to where the credibility lies, the           appellate Court  should  not  interfere  with  the

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         finding of the trial judge on a question of fact."      In the  instant case,  it may  be noted  that the trial judge on a consideration of every material on record reached the conclusion  that the  plaintiff was in possession of the property and  it was only in 1954 she was dispossessed. This conclusion  was   also  based  on  the  credibility  of  the witnesses  examined  by  the  parties.  The  Division  Bench reversed that  finding without due regard to the probability of the  case and  the considerations  weighed with the trial judge.  The  Division  Bench  appears  to  have  missed  the important features which have not been properly explained by the defendants. 729      First, about  the  western  boundary  of  the  property purchased by  the defendants.  In all the sale-deeds forming links in  the defendants  title Ex.  P6 of 1940, Ex. P7 1953 and Ex.  P8 of  1954, the western boundary has been shown as the property  belonging to  Nagappa. What  was that property belonging to  Nagappa which  formed the western boundary? It was certainly  not the  land bearing  R.S. No. 3862 and 3863 although counsel  for the respondents made an attempt before us to  show that  the said land formed the western boundary. But there  is nothing  on record  to lend  credence to  this belated submission.  It was  never the  case of  the parties that the plaintiff had no other property apart from R.S. No. 3862 and 3863.      Second, the  SIET  purchased  under  Ex.  P7  the  land measuring 38  grounds. Within  a couple of months thereafter the SIET  conveyed under  the deed  of exchange  Ex. P8,  43 grounds 1324  sq. ft. If one prefers to go yet further back, the Rani of Vuyyur purchased only 35 grounds 1989 sq. ft. It was the  same property  which was the subject matter of sale under Ex.  P7 and later the subject matter of exchange under Ex. P8.  One fails  to understand  how that  waxing could be possible without an attempt to grab the adjacent property      Thirdly, the  plaintiff has  come forward with specific case that  her land  was encroached by the defendants in the early part of January-February 1954. That has been denied in the written  statement filed  by the  Secretary of the SIET. The Secretary  was examined as D.W. 3. He was a star witness in support  of the defendants case. The sale deed Ex. P7 was in his  name. The  exchange deed  EX. P8 was executed by him along with treasurer of the SIET. D.W. 3 in his evidence has given a  go-by to  his pleading.  He stated  that he did not examine the  title deeds  of his  property. He  did not know anything about  the contents  of the title deeds except in a general way.  He did  not take  any responsibility  for  any portion of the sale deed in favour of the SIET. He said that the exchange  deed was  given to  him by the Chairman of the SIET and  he did  not actually draft it. He also stated that he could  not explain  how the property which was 38 grounds at the time of purchase under Ex. P7 came to be described as 43 grounds in Ex. P8, although he later said that Ex. P8 was written after  measurement and  demarcation of the property. We do  not know whether he feigned his ignorance, or whether he was  trying to  be ingenious. We could only conclude that he was fair enough and ingenuous. He stated before the Court that he  did not  investigate the  title and  could not take personal responsibility  for the  statement he  made in  the written statement  to the  effect that the plaintiff was not in possession of the property. This was the final blow 730 to the  defendants case  which the Division Bench has failed to A appreciate.      The force  of the  second  contention,  urged  for  the

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appellant cannot  also be  gainsaid. We  have already stated that the suit property was admittedly located in a low lying area with  a  deep  pit  where  water  stagnated  making  it incapable of  use and  enjoyment. The  sale deed  Ex. P2  by which the  property was  purchased by  Nagappa described the property as  a pit.  It has  come from the evidence that the land was  8  feet  below  the  road  level.  It  was  called "Pallam". There  would be  water in  the "Pallam" during the rainy reason  making it  a pond (see the evidence of P.W. 1) It was  also admitted  before the  trial judge that the suit property was low Lying where water did stagnate. The learned judge,  however,   found  it   unnecessary  to   draw  legal presumption of possession because on other material he found the defacto possession with the plaintiff till 1954. The law with regard  to  possession  of  such  land  is  clear.  The possession continues  with the title holder unless and until the defendant  acquires title  by adverse  possession. There would be  no continuance of adverse possession when the land remains submerged  and  when  it  is  put  out  of  use  and enjoyment. In such a case the party having title could claim constructive possession  provided the  title  had  not  been extinguished by  adverse possession  before  the  last  sub- mergence.  There  is  no  difference  in  principle  between seasonal submersion  and one which continues for a length of time. This  view has  been applied  by the  Privy Council in Basanta Kumar  Roy v. Secretary of State, ILR Vol. 44 (1917) Calcutta series 858 at 871-2 where Lord Summer observed:           "The Limitation  Act of  1877 does  not define the           term  "dispossession"  but  its  meaning  is  well           settled. A  man may  cease to use his land because           he cannot use it, since it is under water, he does           not   thereby    discontinue    his    possession:           constructively   it   continues,   until   he   is           dispossessed;  and,  upon  the  cessation  of  the           dispossession before  the lapse  of the  statutory           period, constructively  it revives.  "There can be           no discontinuance by absence of use and enjoyment,           when the land is not capable of use and enjoyment"           (Per Cotton,  L.J. in  Leigh v. Jack (1). It seems           to follow  that there  can be  no  continuance  of           adverse possession,  when the  land is not capable           of use  and enjoyment,  so long  as  such  adverse           possesion  must   rest  on   de  facto   use   and           occupation. When  sufficient time  has elapsed  to           extinguish the  old title and start a new one, the           new owner’s posses- 731           sion of  course continues  untill there  is  fresh           dispossession, and revives as it ceases                In the  case of  Secretary of State for India           v. Krishnamoni Gupta, [1902] ILR 29 Cal 5 18 their           Lordships’ Board  applied this  view  to  a  case,           where a  river shifting  its course  first in  one           direction and  then  in  the  opposite  direction,           first exposed  certain submerged  lands, of  which           the Government  took possession,  and then after a           few  years   flooded  them   again.  No   rational           distinction can be drawn between that case and the           present one, where the reflooding was seasonal and           occurred for  several months  in each year. It was           held that  when  the  land  was  re-submerged  the           possession of  the Government determined, and that           while it  remained submerged,  no possession could           be deemed  to  continue  so  as  to  be  available           towards the  ultimate acquisition of title against

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         the true owner."      These  principles,   in  our   opinion,   are   equally applicable to  the present  case. The  plaintiff has  proved title to  the property.  The defendants  have  not  acquired title by  adverse possession.  The property  as described in the sale  deed Ex.  P2 was a vacant land fetching no income. It  was   called  "Pallam"   or  pond  that  was  seasonally submerged.  The   entire  land   might  not   be  seasonally submerged, but it makes little difference in the position of law. "As  a general  rule  possession  of  part  is  in  law possession of the whole, if the whole is otherwise vacant. " Sarkar on Evidence Vo. 2 13th Edn. p. 110.      In the  view of  the foregoing discussion, we allow the appeal with  cost, set  aside the  judgment of  the Division Bench and restore that of the learned single judge. N.P.V.                                       Appeal allowed. 732