# P. /4Jhmi R1dd7 v. {4,hmi R1d<f:I

- **Citation:** [1957] 1 S.C.R. 195
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Bench:** Jagannadhadas, B. P. SrNHA, Jafer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-4jhmi-r1dd7-v-4-hmi-r1d-f-i-1333
- **Pages:** 13

## Headnote

Adverse
Possession-Possession
of co-heir, when
adverse,-
Ottster-Possession of Receiver pendente lite, if can be tacked.
V died an infant in 1927 and H, an agnatic relation, filed a
suit for the recovery of the properties belonging · to V which were
in the possession of third parties, on the ground that he was the
sole nearest male agnate entitled to all the properties.
During
the pendency of the suit a
Receiver was appointed for the pro- ·
pcrties in
February, 1928.
The suit having been decreed
H
obtained possession of the properties from the
Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H's heir.
On
October 23, 1941, -the
respondent brought the present suit
for the recovery of a onethird share of the properties from the appellant
on the footing
that he and his brother were agnatic
relations of V of the same
degree as H, that all the three were equal co-heirs of V and that
I-I obtained the decree and got into possession on behalf of all the
co-heirs.
The appellant resisted the suit and contended that the
respondent lost his right by the adverse possession
of
H and his
successor and
that for this
purpose not only
the period
from
January 20, 1930, to October 23, 1941, was to be counted but also
the prior period when the Receiver was in possession of the properties during the pendency of H's suit.
It was found that the
respondent's case that H o'btained the decree and got possession
from the
Receiver on behalf of the other co-heirs was not true :
Held, that the respondent did not lose
his right by adverse
posses~ion.
Even assuming that H's possession from January 20,
1930, was adverse and amounted to ouster of
the other co-heirs,
such adverse possession was not adequate in time to displace the
title of the respondent and the period during which the Receiver
was in possession could not be added, because (I) the
Receiver's
Kalua
"·
The Stat1 ef
U1tar Pradesh
Imam].
De&1mbtr, 5.
1956
P. /4Jhmi R1dd7
v.
{4,hmi R1d<f:I
196
SUPREME COURT REPORTS
[1957]
possession could not be tacked on to H's possession, as a Receiver
is an ofliCer of the Court and is not the agent of any party to the
suit and notwithstanding that
in law his
possession is ultin1ately
treated as possession of the
successful
party on
the termination
of the suit, he could not be considered as the agent of such party
with the animus of claiming sole and exclusive
title
with the
view to initiate adverse possession ; and (2) during the ti1nc of the
Receiver's possession the respondent could not sue H, and limitation could not therefore run against him.
The possession of one co-heir is considertd, in law, as possession of all the co-heirs and _in
order to establish
adverse possec;-
sion ouster of the non-possessing co-heir
should be made out and
as between the.rn there must be evidence
of
open
assertion
.of
hostile
title, coupled with exclusive possession and enjoyment by
one of thetn to the knowledge
of
the other so as to constitute
ouster.
CIVIL
APPELLATE
j URISDICTION :
Civil
Appeal
No. 178 of 1955.
Appeal by, special leave from the

## Text

S.C.R.
SUPREME COURT REPORTS
195
was· fired from the pistol
Ex. III
produced
by
the
appellant from his house.
There can, therefore, be no
room for thinking, in the circumstances established ·in
this case, that any one else other than the
appellant
might
have shot
Daya Ram.
He
was,
therefore,
rightly convicted for the offence of murder.
The appeal is accordingly dismissed.
P. LAKSHMI REDDY
ti.
La LAKSHMI REDDY
(JAGANNADHADAS, B. P. SrNHA and
JAFER IMAM, JJ.)
Adverse
Possession-Possession
of co-heir, when
adverse,-
Ottster-Possession of Receiver pendente lite, if can be tacked.
V died an infant in 1927 and H, an agnatic relation, filed a
suit for the recovery of the properties belonging · to V which were
in the possession of third parties, on the ground that he was the
sole nearest male agnate entitled to all the properties.
During
the pendency of the suit a
Receiver was appointed for the pro- ·
pcrties in
February, 1928.
The suit having been decreed
H
obtained possession of the properties from the
Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H's heir.
On
October 23, 1941, -the
respondent brought the present suit
for the recovery of a onethird share of the properties from the appellant
on the footing
that he and his brother were agnatic
relations of V of the same
degree as H, that all the three were equal co-heirs of V and that
I-I obtained the decree and got into possession on behalf of all the
co-heirs.
The appellant resisted the suit and contended that the
respondent lost his right by the adverse possession
of
H and his
successor and
that for this
purpose not only
the period
from
January 20, 1930, to October 23, 1941, was to be counted but also
the prior period when the Receiver was in possession of the properties during the pendency of H's suit.
It was found that the
respondent's case that H o'btained the decree and got possession
from the
Receiver on behalf of the other co-heirs was not true :
Held, that the respondent did not lose
his right by adverse
posses~ion.
Even assuming that H's possession from January 20,
1930, was adverse and amounted to ouster of
the other co-heirs,
such adverse possession was not adequate in time to displace the
title of the respondent and the period during which the Receiver
was in possession could not be added, because (I) the
Receiver's
Kalua
"·
The Stat1 ef
U1tar Pradesh
Imam].
De&1mbtr, 5.
1956
P. /4Jhmi R1dd7
v.
{4,hmi R1d<f:I
196
SUPREME COURT REPORTS
[1957]
possession could not be tacked on to H's possession, as a Receiver
is an ofliCer of the Court and is not the agent of any party to the
suit and notwithstanding that
in law his
possession is ultin1ately
treated as possession of the
successful
party on
the termination
of the suit, he could not be considered as the agent of such party
with the animus of claiming sole and exclusive
title
with the
view to initiate adverse possession ; and (2) during the ti1nc of the
Receiver's possession the respondent could not sue H, and limitation could not therefore run against him.
The possession of one co-heir is considertd, in law, as possession of all the co-heirs and _in
order to establish
adverse possec;-
sion ouster of the non-possessing co-heir
should be made out and
as between the.rn there must be evidence
of
open
assertion
.of
hostile
title, coupled with exclusive possession and enjoyment by
one of thetn to the knowledge
of
the other so as to constitute
ouster.
CIVIL
APPELLATE
j URISDICTION :
Civil
Appeal
No. 178 of 1955.
Appeal by, special leave from the
Judgment
and
decree dated December 3, 1951, of the
High Court of
Judicature at
Madras in
Second Appeal No. 766 of
1947 against the · decree dated
November
19, 1946, of
the District Court of
Anantapur in Appeal No. 130 of
1945 arising out of the decree dated
january 31, l94~,,
of the Court of Subordinate
Judge,
Anantapur, in
Original Suit No. 10 of 1944.
M. C. Setalvad, Attorney-General of
Reddy, K. Sundararajan and M. S. K.
the appellant.
India, P. Ram
Aiyangar,
for
C. K. Daplitary, Solicitor-General of India, an<l g, R.
Chaudhury, for the respondent.
1956. December 5.
The
Judgment
of the
Court
was delivered by
JACANNADHADAS J.-The plaintiff in the action out
of which this appeal arises brought a suit for declaration
of his title to a one-third share in the
suit
properties
and for partition and recovery of that share.
The suit
was dismissed as having been barred by limitation and
adverse possession.
On
appeal
the
District
Judge
reversed the decision and decreed the suit. The High
Court maintained the decree of the District
Judge on
second · appeal.
Hence this appeal before us on special
S.C.R.
SUPREME COURT REPORTS
197
leave by the first defendant in the action,
who 1s the
appellant before us.
The main question that arises in
the appeal is whether the plaintiff has lost his right to
a one-third
share in the
suit
property
by
adverse
pmsession.
The property in suit belonged to one Venkata Reddy.
He died an infant on August 25, 1927.
At
that time,
the properties were in the possession
of the
maternal
uncles of the father of the
deceased
Venkata Reddy.
One Hanimi Reddy, an agnatic
relation of Venkata
Reddy, filed a suit O.S. No. 26 of 1927 for recovery of
the properties
from
the
said
maternal
uncles and
obtained a Jecree therein on March 15, 1929. A Receiver was appointed for the properties in
February, 1928,
during the pendency
of the
suit and presumably the
properties were in . his possession.
This appears
from
the decree which shows that it directed the
Receiver to
deliver possession to the
successful
plaintiff
in
that
suit.
Hanimi Reddy obtained
actual
possession
of
these properties on
January 20, 1930, and continued
in possession till he died on. August 16, 1936. The first
defendant in the present action who
is the
appellap.t
before us is a son of the brother of Hanirni Reddy and
came into possession of
all the properties as
Hanimi
Reddy's heir.
The respondent before us is the
plaintiff.
The present suit was brought on
the allegation
that the plaintiff and the second defendant in the suit,
his brother, were agnat'c relations of
Venkata
Reddy,
of the· same degree as Hanimi Reddy and
that all the
three were equal
co-heirs of
Venkata
Reddy
and
succeeded to his properties as such on his death. It was
alleged that though
Hanimi
Reddy
filed
the prior
suit and obtained ·possession
of the
properties
thereunder, he did so as one of the co-heirs, with the consent
of the plaintiff and the second defendant and
that he
was enjoying the properties jointly
with
the plaintiff
and his brother as
tenants-in-common
but
that
the
first defendant, who came into possession on the death
of Hanimi Reddy denied the title of the plaintiff and
his brother in or about the year i940.
The plaint in
the present action was filed originally
in
the
District
Munsif's Court on October 23, 1941, and was
ordered
1956
P. LW'-i Rdtl7
Y.
L. IAU,_. R.ld7
1!J56
P. Laksllmi &tidy
v.
L. Laks/tnli Reddy
J.,.,,.,.lllf1uM1a, J.
198
SUPREME COURT REPORTS
[1957]
to be returned for presentation to the. District Judge's
Court on
November 30, 1942.
It was
actu~lly re-presented in that Court on December 2, 1942. One of the
questions raised in the
suit
was that the suit
was
barred by limitation on the ground that it must
be
taken to have been instituted not on October 23, 1941,
but on December 2, 1942.
This plea was upheld
by
the trial Court. On. first appeal the District Judge held
that the plaintiif is entitled to the benefit of s. 14 of
the Limitation Act and that the suit must be taken as
having bl:en instituted
on
October 23, 1941, and is,
therefore, in time.
He accordingly decreed
the suit.
1n the High Court the
question as to whether. the
plaintiif was entitled to the
benefit of s. 14 of the
Limitation
Act, though raised, was not finally decided.
It was held that the possession of Hanimi Reddy
was
not adverse to the plaintiff and that
accordingly
he
was entitled to the decree as
prayed for.
The· questi!'>n as to the non-availability of the benefit of s. 14 of
the Limitation Act to the plaintiff in the present suit
has not been urged
before us and the finding of the
District Judge that the plaint must be taken to have
been validly
presented
on
October 23, 1941, stands.
That
date
must,
therefore,
be
taken
to be
the
commencement of the action for the
purposes of this
appeal.
It will be noticed that this date is more than
fourteen years from the date
when
the
succession
opened to the properties of
Venkata Reddy on
August
25, 1927, but is less than twelve years after
Hanimi
Reddy obtained actual possession in
execution
of his
decree on January 20, 1930.
The contention
of the
learned Attorney-General for the appellant first defendant is
.that the
possession
of
Hanimi
Reddy
was
adverse, that the plaintiff as well as the second defendant
lost their
right by
the
adverse
possession
of
Hanimi Reddy and his successor, the first
defendant,
and that for this
purpose not only tl1e period from
January 20, 1930, up to
Octoher
23, 1941, is to
be
counted but also the prior period during the pendency
of Hanimi Reddy's suit when the Receiver was in
possession of the suit properties.
It is the validity
of
S.C.R.
SUPREME COURT REPORTS
199
these two parts of the argument which has to be considered.
It will be convenient to consider in the first instance
whether or not the possession of
Hanimi
Reddy from
January 20, 1930, up to the date of his death in 1936
was adverse to his co-heirs.
The facts
relevant
for
this purpose
are the
following.
At the date
when
Venkata
Reddy died his properties were in the custody
of
the ·two
maternal uncles of
his father.
Hanimi
Reddy filed his suit on the allegation, as already stated
above, that he was the nearest agnatic relation alive of
the deceased minor
Venkata
Reddv
and as his next
rightful heir
to succeed to all the. e~tate,
movable and
immovable, of the said minor, set forth in the schedules
thereto.
He appended a genealogical tree to his plaint
which showed his
relationship
to
Venkata
Reddy
through .a common ancestor and showed
only the two
lines of himself and
Venkata
Reddv.
Plaintiff
and
the second defendant belong to anoth~ line emanating
from the same common ancestor but that line was not
shown and
the plaintiff and second defendant
were
ignored.
The first
defendant in the present suit did
not admit
the relationship of plaintiff and second
defendant in his written statement.
He disputed that
the father of the plaintiff and second defendant
was
descended from the common ancestor either by birth
or by adoption, as
shown
in the genealogical table
attached to the present plaint.
It is possible that this
may have been the reason for Hanimi Reddy ignoring
the plaintiff arid the second
defendant
in his
suit.
However this may be, at the trial in this suit it was
admitted that the plaintiff and the second defendant
are the agnatic relations of Venkata Reddy of
the same
degree· as
Hanitni
Reddy.
The defendants
in the
earlier suit who were in possession on that date claimed
to retain possession on behalf of an alleged illatom sonin-Iaw (of Venkata Reddy's father) a son of the second
defendant therein.
It may be mentioned that in that
part of the country (Andhra) an illatom son-in-law is
a boy incorporated into the family with a view to give
a. daughter in marriage and is customarily recognised
as an heir in the absence of a natural-born son. This
6-76 S. C. lndia/59
P. Lakr/,,ni Reddy
v;
L. Laksh1lii Reddy
Jaganntulliada.s ].
1956
'°· l..alcJhmi Reddy
••
-f,, La!r.Jhmi R.tdd.J
Ja~annadht1r/rir J.
200
SUPREME COURT REPORTS
(1957]
claim appears to have been negatived and the suit was
decreed.
During the pendency of the suit -a Receiver
was appointed in
February, 1928.
He
presumably
took possession though the date of his taking possession is not on
the record.
The decree in that
suit
dated March 15, 1929, is as follows :
"This Court doth order and decree that
plaintiff
do ·recover possession
of
immovable
property
and
movables in the possession of the Receiver."
It is in the evidence of the first defendant himself as
D.W. 1 that the properties
were taken possession
of
by Hanimi
Reddy on
January 20, 1930.
The plaint"
ilf examined himself as P.W. 1 to substantiate
the
case as set out in his plaint that he and the
second
defendant and
Hanimi Reddy were enjoying the pr<>-
perties: jointly as tenants in common.
The relevant
portion of his evidence is as follows :
"Annu Reddy (Hanimi Reddy) uncle of defendant
l, and myself filed 0. S. No. 26 of 1927, District Court,
Anantapur-same as O.S. No. 24 of 1928,
Sub-Court,
Anantapur-for the properties of the deceased
Venkata -
Reddy. As Hanimi Reddy was the eldest
member, he
was attending to the conduct of that suit.
I was
also
coming to Court along with him.
The suit ended in
our favour.
Hanimi -Reddy took possession through
Court after the decree in the year 1930.
Since then
both Hanimi Reddy and myself
have
been in 1oint
possession and enjoyment of the same."
In cross-examination he said as follows :
"I told Hanimi Reddy that
I would also j0111 him
as a party in 0.S. 24 of 1928.
He said there was no
need for me to join and that he would give my share
to me .......... I did not file
any
application
to
be
impleaded as a defendant.
. . . . . . . . . . I have nothing
in writing to show that
Hanimi Reddy was giving me
any produce from the suit lands."
The first defendant filed the plaint, judgment and
decree in' Hanimi Reddy's suit
as also
pattas, cist
receipts and lease deeds tak"11 by Hanimi
Reddy in
his -time.
With reference
to this evidence the trial
Court found as follows :
S.C.R.
SUPREME COURT REPORTS
201
"The documents filed on behalf of the first defendant completely establish that Hanimi
Reddy filed the
1uit in his individual capacity and obtained possession
thereof.
There is nothing to indicate
that either
the
plaintiff or the second defendant took any in~erest in
those proceedings ...... ,., ....... There is no evidence of
Hanimi Reddy having given any produce to the plaintiff or to the second defendant.. . . . . . . .. The plaintiff
and the second defendant have
been excluded
from
participation of profits to their knowledege since 1930."
The learned District Judge found on appeal (whep the
same was remanded to him for a finding by the High
Court) as follows :
"I have no hesitation in holding that the plaintiff
had nothing to do with the institution or
conduct of
the suit O.S. No. 24 of 1928 on the file
of the
SubCourt of Anamapur, and that he never had any actual
joint enjoyment of suit properties with
the late
D.
Hanimi Reddy or the first defendant."
He has not given a finding as to whether the nonparticipation of
the profits by the plaintiff and the
aecond defendant was in the nature of exclusion to their
knowledge.
But there are some· admitted and relevant
facts
brought out in evidence
which are significant.
The
present
evidence as well as the plaint in the
earlier suit of 1927 show clearly that all the parties
including
Hanimi
Reddy
were residents
of village
Mamuduru.
All the suit
properties arc
situated in
that village itself, as appears from the schedules to the
plaint in the
earlier suit.
Hanimi
Reddy
and
the
plaintiff were fairly closely related as appears from the
plaintiff's admission as follows :
"My brother-in-law who is also
the nephew
of
Hanimi Reddy was staying with Hanimi Reddy.
My
father-in-law and defendant No. l's father-in-law is the
same."
On these facts the question that arises is whether, in
law, the possession of Hanimi Reddy from January
20, 1930, onwards was adverse to' the plaintiff and the
second defendant.
1956
P. Lakshmi Reddy
v.
L. Lakshmi Reddy
Ja:1J11Mdhadas J.
1956
P. Lakshmi &1dy
v.
L. Lakshmi &ddy
JagannadhiJdas J.
202
SUPREME COURT REPORTS
f19571
Now, the ordinary clas~cal requirement of adverse
possession is that it should
be ner t'i nee
clam nee
precario.
(See Secretary of State for India v. · Debe,zdra
Lal ·Khan (1 ) ). The possession
required must be adequate in continuity, in publicity and in extent to show
that it is possession
adverse to the competitor.
(See
.Radhamoni Debi v. Collector of Khulna (') ). But it is
well-settled that in order to establish a<lvc:rsc
possession_ of one co-heir as against another it is
not enough
to show that one out of them is in sole possession and
enjoyment of the profits of the properties.
Ouster of
the non-possessing co-heir by the co-heir in possession,
who claims his possession to be adverse,
should
be
made out.
The possession of one co-heir is considered,
in law,
a~ possession of all the co-heirs.
When
one
co-heir is found to be in possession ·of the properties it
is presumed to be on the basi; of joint title.
The cohdr in possession cannot render his possession adverse
to the other co-heir not in possession merely by any
secret hostile animus on his own part in derogation of
the other co-heir's title. (See Corea v. Appuhamy(3 ) ).
It is a settled rule of law that as between co-heirs
there
must be evidence .of open assertion of hostile
title, coupled with exclusive possession
a11d enjoyment
by one of them to the knowledge of the other so as to
constitute ouster.
This does
not necessarily
mean that
there must be an express demand by
one and denial
bv the other.
There arc cases which have
held that
adverse possession and ouster
can
be inferred
when
one co-heir takes and maintains
notorious
exclusive
possession in assertion of hostile title
and continues in
such possession for a very considerable time
and the
excluded heir
takes no steps
to vindicate
his title.
Whether that line of cases is right or wrong we need
not pause to consider.
It is. sufficient
to notice
that
the Privy Council in N. Varada Pillai v. /eevarathnammal( )
quotes, apparently
with approval , a passa~
from
Culley v. Deod Taylerson() which indicates
that
such a
situation may well lead to an inference of
(1) [1933] L.R. 61 l.A.78,82.
(4) A.l.R.1919 P.C. +H7·
(2) [1900) L.R. 27 l.A.136,r40.
(5) 3 P.&D. 539;52 R.R.566.
(3) [1912) A.C. 230.
S.C.R.
SlIPREME COURT REPORTS
203
ouster "if
other
circumstances
concur".
(See
also
Govindrao v. Rajabai( 1 ).
It may be further menti~t:ied
that it is well-settled that the burden of making out
ouster is on the person claiming to displace the lawful
title of a co-heir by his adverse possession.
In the present case there can be no
doubt that
Hanimi
Reddy obtained sole
possession of the
suit
properties after the death of
Venkata Reddy on the
basis of an action against
third parties in
which he
claimed to be the sole nearest male agnate having title
to all the properties.
After
obtaining
possession
he
was in continuous and
undisputed possession
of the
properties till his death enjoying all the profits thereof.
No doubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title, he being one of the co-heirs.
But the plaint in the suit of
1927 and
the
decree
therein
render it reasonably
clear that he filed the suit and obtained possession
on
the basis of his having exclusive title ignoring
his coheirs.
It is urged that knowledge of thr assertion
of
such exclusive title averred in a plaint cannot be imputed to other co-heirs who are not parties to the suit.
But in thi~ case it is not difficult on the evidence
to
i>ay that the plaintiff and the second defendant
must
have been fully aware, at the time,
of the nature
of
the claim
made
by_ Hanimi
Reddy in
the
prior
litigation and on
the basis of
which he
obtained
possession. That knowledge is implicit in the very case
that they have put forward in the present plant. Their
case is that the prior
suit was brought
by
Hanimi
Reddy with the consent of the plaintiff and the second
defendant and on their behalf.
No doubt that specific
case has been found against them and that . finding is
res judicata
between the parties.
But there
is
no
reason why the admission as to the knowledge
of the
nature of the litigation and the contents of the plaint
which such a case necessarily implies
should
not be
attributed at least to the present plaintiff.
It appears
reasonable to think that the plaintiff being unable to
explain his inaction for over fourteen years after
the
<leath of Venkata Reddy has been constrained to
put
(1) A.I.R. 1931 P.C. 48.
1956 .
P. Likshmi Reddy
v.
L. Lakshmi Reddy
Ja1annadhadas ].
1956
P. 1.Airshmi Reddy
v.
L. Lakshmi R.dd,y
Jagannadhmlas ].
204
· SUPREME COURT REPORTS
[1957]
forward a false case that the
prior
suit
by Hanimi
Reddy was with his consent and on his behalf.
It is
significant that the plaintiff has remained silent
without asserting
his right during
Hanimi Reddy's lifetime, and comes forward with this suit after his death,
rendering it
difficult to ascertain whether the fact of
Hanimi Reddy completely
ignoring the
existence
of
the plaintiff and the second defendant as co-heirs was
not in denial of their relationship and consequently of
their title as co-heirs to their .knowledge.
The fact
that even so late as in the written
statement
of the
first defendant
relationship is denied
may be indicative as to why Hanimi Reddy ignored
the plaintiff
and the
second
defendant and why they
remained
silent. The learned
Judges of the High Co_urt thought
that there was nothing to show that Hanimi
Reddy
was aware that plaintiff and second defendant had any
. rights in the properties as co-heirs.
This
assumpti<>I).
is contrary to
the admission of mutual knowledge of
each other's rights implicit in the plaintiff's case that
Hanimi Reddy
brought his suit with the consent of
the plaintiff.
In such circumstances
and
especially
having regard to the fact that
both the plaintiff and
Hanimi
Reddy
were living in the same village
and
the plaintiff has put forward a false
explanation
to
account for his inaction, a Court of fact might
well
have inferred ouster.
Sitting on an appeal in special
leave, however, we do not feel it desirable
to decide
the case on this ground.
We, therefore,
proceed to
consider the further
question that arises in the case,
t1iz., whether the
Receiver's possession can be tacked
on to Hanimi Reddy's
possession on
the assumption
that
Hanimi . Reddy's possession on and from January
20, 1940, was adverse to the plaintiff.
The learned
Attorney-General
urges
that prior
possession of the
Receiver
pending the suit must be
treated as possession on behalf of Hanimi Reddy
with
the animus of claiming
sole
and
exclusive title dis-
. closed in his plaint.
In support of this contention . he
relies on the well-known . legal
principle that when a
Court takes possession of properties through its Receiver, such
Receiver's
possession
is
that
of
all the
S.C.R.
SUPREME COURT REPORTS
205
parties to the action according to their titles. (See
Kerr on
Receivers, 12th Ed., p. 153).
In Woodrotfe
on the
Law relating to
Receivers
(4th Ed.) at p. 63
the legal position is stated as follows :
"The Receiver
being the
officer of the
Court
frorri which he derives his appointment, his possession
is exclusively the possession of the
Court, the property
being regarded as in the custody of the law, in gremio
legisi for the benefit of
whoever
may be ultimately
determined to be entitled thereto."
But does this doctrine enable a person who was not
previously in possession
of the
suit properties,
to
claim that the
Receiver must be deemed to have taken
possession adversely to the true owner, on his behalf,
merely because he ultimately
succeeds in
getting a
decree for possession against
the
defendant
therein
who wa•;
previously in possession without
title.
A
Receiver is an officer of the
Court and is not a particular agen~ of any party to the suit, notwithstanding
that in law his possession is ultimately treated as possession of the successful party' on the
termination
of
the suit.
To trea( such
Receiver as plaintiff's agent
for the purpose of initiating adverse possession
by the
plaintiff would be to impute wrong-doing to the Court
ana its officers.
The doctrine of
Receiver's possession
being
that
of the successful
party
cannot, in our
opinion, be pushed to the extent of enabling a person
who was initially out of possession to claim the tacking
on of
Receiver's
possession to his
subsequent
adverse possession.
The position may conceivably
be
different where the defendant in the
suit
was 'previously in adverse
possession
against
the real owner
and the
Receiver has taken possession from him and
restores it back to him on the. successful termination
of the suit in his favour.
In such a case the question
that would arise would be different, viz., whether the
interim possession of the
Receiver
would
be a discontinuance or abandonment of possession or interruption of the adverse possession.
We are not concerned
with it in this case and express no opinion on it.
The matter may be looked at from another point of
view.
It is well-settled that limitation cannot begin
195G
P. Lakshmi Reddy
.v.
L. Lakshmi Rrddy
J agannadhadas J.
/
1956
P. l.ak.thmi &ddy
v.
! .. Lak~ii;ni Redi(Y
,Jaganna.Jhadas ].
206
SUPREME COURT REPORTS
[1957]
to run against a person unless at the time that person
is legally in a position to vindicate his title by action.
In
Mitra's Tago;·e L2W Lectures on
Limitation and
Prescription (6th Ed.) Vol. I, Lecture VI, at p .. 159,
quoting from Angell on
Limitation, this principle is
stated in the following terms :
. ·
"An adverse holding
is an
actual
and exclusive
appropriation
of
land commenced
and
continued
ttnder a claim of right, either under an openlv avowed
claim, or under a constmctive claim (arising from the
act' and
circumstances
attending the appropriation),
to hold the land against him who was in possession.
(Angell, sections 390 and 398).
It is the intention to
claim adversely
accompanied by such an invasion
of
the rights of the opposite party as gives him a cattse of
action which ~onstitutes adverse possession."
Consonant with this principle the commencement of
adverse possession, in favour of a person, implies that
that person is in actual possession, at the time, with a
notorious hostile
claim
of CJ[clusive title, to repel
which, the true owner would then be in a position to
maintain an action.
It would follow
that whatever
may be the animus or intention of a person wantini:
to acquire
title
by adverse
possession
his
adverse
possession cannot commence
until
he obtains
actual
possession with the requisite animus.
In the
leading
case of Agency Company v. Short( 1 ) the
Privy Council
points out
that there is discontinuance
of
adverse
possession when possession
has been abandoned
and
gives as the reason therefor, at p. 798, as follows :
"There is no one against whom he (the rightful
owner) can bring his action:'
It is clearly implied therein that adverse possession
cannot
commence • without
actual
possession
which
can furnish. cause of action.
This principle has
been
also explai1>ed in . Dwiiendra
Narain
~oy v.
Joges
Chandrtt De(') at p. 609 by Mookerjee J. as follows:
"The substance of the matter is that
time runs
·when the cause of action accrues, and a cause of action
accrues, when there is in existence a person who can
(1) (1888) 13 App. Cas. 793·
(•) A. I. R. •9•4 Cal. o
J
S.C.R.
SUPREME COURT REPORTS
207
sue and another who can be sued ...... The cause of
action arises when and only when the aggrieved party
has the right to apply to the proper tribunals for relief.
The statute (of limitation) does not attach to a claim
for which there is as yet no right of action and does
not run against a right for which there is no corresponding remedy or for
which judgment cannot
be
obtained.
Conseouentlv
the true test
to
determine
when a cause of 'actio~ has accrued is to ascertain
the
time when plaintiff
could first have maintained
his
action to a successful result."
In the present case, the co-heirs out of possession such
as the plaintiff and the second
defendant
were not
obliged to bring a suit for possession against
Hanimi
Reddy until such time as Hanimi Reddy obtained actual
possession.
Indeed during the time when the Receiver
was in possession, obviously, they could not sue him
for possession to vindicate their title.
Nor were they
<>pliged during that time to file a futile suit for posses-
$ion either against
Hanimi
Reddy
or
against
the
defendants in
Hanimi
Reddy's suit
when neither of
them was in possession. It appears to us, therefore,
that the adverse PQssession of Hanimi Reddy, if any,
as against his co-heirs could not commence when the
Receiver was in .possession.
It follows that assuming
that the possession of
Hanimi Reddy from January 20,
1930, was in fact adverse and amounted to ouster
of
the co-heirs such adverse possession was not adequate
in time by October 23, 1941, the date of suit, to displace
the title of the plaintiff. It follows that the
plaintiifrespondent before us is entitled to the decree which he
has obtained and that the decision of the
High
Court
is, in our view, correct, though on different grounds.
It may be mentioned that objection has been. raised on
behalf of the respondents before us that the question
·of tacking on Receivr:r's possession was not in issue in
the lower Courts and should not be allowed to be raised
here.
In the view we have taken
it is unnecessary to
-Oeal with this objection.
In the result the appeal is dismissed with costs.
Appeal dismissed.
1956
P. Lakshmi &ddy
"·
L. Lakshmi Reddy
] agannadhadas J.