1. This appeal is directed against the decree in O.S. No. 144 of 1118 on the file of the Trivandrum District Court. The plaintiffs in the suit sought for recovery of the properties described in the A and B schedules attached to the plaint, on the strength of their title. Even though the suit was resisted by defendants 1,3,6,9,10,11,14 and 17, the main contest was by defendants 1 and 3, the 3rd defendant being the son of the 1st defendant. For the purpose of this appeal it is not necessary to specify all their contentions. The main contention urged on their behalf was that even if the plaintiffs had any title to the property, the same had been lost long prior to the date of the present suit on account of the defendants adverse possession and limitation. In respect of items 1 to 4 of the B schedule, the plaintiffs suit was dismissed by the trial court. Regarding items 1 to 8 of the A schedule the plaintiffs claim of title was upheld by the trial court and a decree was passed in their favour for recovery of possession of these items from the defendants in possession of the same together with past and future mesne profits. Items 9 to 16 of the A schedule were found to be in the possession of strangers-mortgagees, and accordingly the 1st plaintiff was directed to institute a separate suit for recovery of possession of these items from such mortgagees. Against such a decree passed by the trial court, the present appeal was filed by defendants 1 and 3 alone. The appeal is confined to their rights in items 1, 3 and 5 of the A schedule. Thus the trial courts decree has become final in respect of the remaining items in the plaint schedule.



2. During the pendency of this appeal the 1st appellant died and the 2nd appellant was recorded as one of the legal representatives of the deceased 1st appellant. The other legal representatives were impleaded as respondents 3 to 7.

3. The appeal was at first heard by a Division Bench of this Court. On a consideration of the question of limitation which was the only point urged on behalf of the appellants, K.S. Govinda Pillai, J. and T.K. Joseph, J. who heard the case, felt it necessary to have an authoritative decision on the question and accordingly they referred the case to a Full Bench. Since the facts relevant and necessary for the purpose of deciding the question of limitation raised by the appellants are mentioned in the order of reference, we do not propose to recapitulate them once again, but would merely quote that order in extenso. The order of reference runs as follows:

"Defendants 1 and 3 are the appellants. The plaintiffs case was that the properties described in schedules A and B of the plaint belonged to one Thanu Pillai of Pattoor house, the properties in schedule A being his private self-acquisitions and those in schedule B what he got in partition in his tarwad. Thanu Pillai executed a gift deed Ext. F dated 11.9.1101 conveying these properties to the 1st plaintiffs karnavan Ayyappan Pillai Velayudhan Pillai. Thanu Pillai died on 3.2.110

2. After his death the 1st defendant and some other members of Thanu Pillais tarwad sued for cancellation of the gift deed. The suit was dismissed by the trial court and the decree was confirmed by the High Court in appeal. Exts. A and B are the judgments of the trial court and the High Court dated 20.12.1107 and 11.3.1112 respectively. It was held in that case that the properties covered by the gift deed belonged to Thanu Pillai absolutely. The 1st plaintiff sold these properties to the 2nd plaintiff and the suit from which this appeal arises was instituted by them on 7.2.1118 for recovery of possession of these properties with mesne profits from the 1st defendant and other defendants who were stated to be in possession under him. It is unnecessary to refer to all the contentions raised by defendants 1 and 3 as the main ground of defence in the lower court was that of limitation. That was the only ground pressed in this court also. It was contended that the 1st defendant and the other defendants have been in continuous adverse possession of the properties and that the suit which was instituted more than twelve years after the date of the gift deed, was barred by limitation. This contention was overruled by the trial court and the plaintiff was given a decree for recovery of the properties in schedule A. Defendants 1 and 3 who have preferred this appeal are interested in items Nos. 1, 3 and 5 in schedule A.

"

2. A preliminary objection was raised on behalf of the respondents that this appeal filed by defendants 1 and 3 jointly was not maintainable as these defendants who were interested in different properties had set up separate defence in the court below and should, therefore, have preferred separate appeals from the decree. There is no substance in this objection because the finding of the court below is that the 3rd defendant is in possession under the 1st defendant. The ground raised in appeal is common to them both, and if the same is upheld, it would be open for this Court to grant relief even if either of them alone had filed the appeal. The preliminary objection is, therefore, overruled."

"3. The point for decision is whether the suit is barred by limitation. It was not disputed that the 1st defendant and the other defendants have been in possession of the properties and that the 1st plaintiff never had possession of the same. Though the suit was instituted more than 12 years after the date of the gift deed, it was contended that the decision in the previous litigation amounted to a declaration of the 1st plaintiffs title and that the decree constituted an effective interruption to the possession of the defendants. This suit was brought within 12 years of the decree of the trial court in the former suit. The question, therefore, reduces itself to this viz., whether a judgment of a Court declaring that a party in possession of the immovable property has no title to it, has the effect of interrupting the continuity of his possession as against the real owner. The trial court decided this question in favour of the plaintiffs on the strength of the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109 FB). It was urged by the learned counsel for the appellants that the view adopted in 29 TLJ 109 was not correct. Reliance was placed on the decisions in Subbaiya Pandaram v. Mahamad Mustapha Maracayar (50 I Appeals 295); Vishnu Janardan v. Mahadev Keshav (AIR 1942 Bombay 44); Dagadabai v. Sakharam (AIR 1948 Bombay 149); Har Indar Singh v. Siv Ram (AIR 1944 Patna 77); Singaravelu Mudaliar v. Chokka Mudaliar (AIR 1923 Madras 88); Mohamad Tahir and others v. Bechev Lal and others (AIR 1936 Allahabad 466); Kishen Lal v. Mohan Lal and others (AIR 1951 Ajmer 1); Bijay Gopal De Chaudhuri v. Gopee Das Ray (ILR 1937 (2) Calcutta 234); Parameswaran Namburi v. Narayanan Namburi (18 Cochin Law Reports 390) & Abdul Kadir v. Kannu Pillai (39 Cochin Law Reports 215). It was held in these cases that a decree declaring that the party in possession had no title could not interrupt the continuity of his possession and that such a decree did not give a fresh starting point of limitation. The Travancore High Court had accepted this view in the decision in Chummaru Mani and another v. Kumaran Neelakandan and others (12 TLR 211) and Aiyappan Pillai Narayana Pillai v. Appili Pillai Lekshmi and others (26 TLJ 476). The learned judges who decided 29 TLJ 109 confirmed the view held in Kanakku Mathevan Ramakrishnan and others v. Ramakrishnan Mathevan and another (22 TLR 157) and Chandi Anthirapper v. Nagendra Prabhu (27 TLJ 284). The decision in 29 TLJ 109 is based mainly on the principle of stare decisis. It also followed a decision of the Bombay High Court in Mir Akbar Ali v. Abdul Ajij (ILR 44 Bombay 934). The later decisions of the Bombay High Court held that Mir Akbar Ali v. Abdul Ajij (ILR 44 Bombay 934) did not lay down the law correctly. There is no authoritative decision of this court on this question. Learned counsel for the respondent brought to our notice the decision of this Court in Isabi v. Abdulla (AIR 1950 T-C. 60 FB) and Gopalan v. Sanku Panicker (AIR 1951 T-C. 32). This question did not directly come up for decision in Isabi v. Abdulla. The latter case was mainly decided on another point but in considering the question of limitation it appears to have been assumed that a decree declaring title in favour of the plaintiff in respect of properties in the possession of the defendant would interrupt the continuity of the defendants possession. We consider it necessary to have an authoritative decision of this question and we accordingly refer the case to a Full Bench for decision."



4. Plaintiffs trace their title to the aforesaid items to the gift deed Ext. F dated 11.9.1101 executed by Thanu Pillai in favour of Ayyappan Pillai Velayudhan Pillai who was the karnavan of the 1st plaintiff. Thanu Pillai died on 3.2.1102 and shortly afterwards the present 1st defendant along with some other members of Thanu Pillais tarwad, instituted the suit O.S. 28/1102 of the Trivandrum District Court, to have the gift deed Ext. F set aside. They maintained that the properties covered by the document belonged to the tarwad and that the same continued to be in their possession and that the gift deed Ext. F was invalid and inoperative. The trial court dismissed the suit holding that the properties belonged to Thanu Pillai and that under the gift deed Ext. F executed by him the donee got a valid title to such properties. Such a decision was given on 20.12.1107 as is seen from Ext. A which is copy of the judgment in that case. That decision was confirmed by the decree passed by the Travancore High Court on 11.3.1112 in A.S. No. 334/110

8. Ext. B is the copy of the judgment in that appeal. It has to be remembered that the plaintiffs in that case were maintaining throughout that possession of the properties continued to be with them and that such possession did not pass to the donee under Ext. F or to his successors-in-interest. This position has not been controverted by the plaintiffs in the present suit. On the other hand it is clearly admitted in the pleadings that possession continued to be with the defendants and that it is on account of the objection of these defendants that the plaintiffs have not been able to secure possession of the properties. Thus there could be no doubt that the possession which the 1st defendant was asserting and maintaining was adverse to the donee and his successors who had clear notice of the adverse nature of the 1st defendants possession at least from the date on which O.S. 28/1102 was filed by the 1st defendant. The present suit was instituted only in the year 1118 i.e., 16 years after the institution of O.S. 28/1102 by the 1st defendant wherein he had openly asserted his title to and possession of these properties in defiance of all the claims on the strength of Ext. F. Such a long and continuous possession is the basis of the plea set up by defendants 1 and 3 that they have perfected title to these properties by adverse possession and limitation. In the year 1115 item 5 and portions of item 1 of the A schedule were sold for arrears of land revenue and were purchased by the 3rd defendant. Item 5 of the A schedule is the same as item 6 of the B schedule. Exts. VI, VII, X and XI are the records relating to the revenue sales. These revenue sales were impeached by the plaintiffs as absolutely void and that contention was upheld by the trial court. The 3rd defendant as auction-purchaser had not taken formal delivery of the properties purchased by him. According to him he got possession from the 1st defendant. The plaintiffs have not recognised such independent possession by the 3rd defendant. His possession is stated to be possession under his father the 1st defendant. The lower court has also taken the view that so far as items 1, 3 and 5 are concerned, defendants 1 and 3 go together and whatever possession the 3rd defendant may have is the possession obtained by him from the 1st defendant. It has also to be remembered that the revenue sales were only in the year 1115 by which time the 1st defendant had continuous possession for over 13 years. If by virtue of such possession the 1st defendant had perfected title to these items, the benefit of his prescriptive title would enure to the 3rd defendant also who is put in possession of portions of these items. Thus in any view of the case the plaintiffs claim against these defendants can succeed only if it is found that the defendants plea of adverse possession and limitation is unsustainable. The plaintiffs answer to that plea is that the decisions in Exts. A and B have the effect of an interruption of the 1st defendants possession of these items. It is obviously on that basis that the plaintiffs have stated in Para.19 of the plaint that their cause of action for the present suit has arisen on 20.12.1107 on which date the judgment in O.S. 28/1102 was delivered by the trial court and also on 11.3.1112 the date on which the judgment of the High Court was declared in A.S. 334/1108.

5. The answer to the question whether a mere declaration of title to the property in favour on one party by a decree of Court would by itself result in an interruption of the adverse possession of that property by the opposite side, is now fairly well settled. At one time divergent views were held by Indian High Courts on this question and the decisions in Mir Akbar Ali v. Abdul Ajij (ILR 44 Bom. 934) [LQ/BomHC/1920/4] and in Singaravelu Mudaliar v. Chokkalinga Mudaliar (ILR 46 Madras 525) represent the two opposing views. In the Bombay case the first suit instituted by the plaintiffs to establish their sole rights to manage the properties in their possession as against the rival claim put forward by the defendants, ended in a dismissal. All the same the plaintiffs continued to be in possession of the properties. In the second suit between the same parties these plaintiffs pleaded that by virtue of their possession for more than 12 years from the date of the commencement of their adverse possession they had acquired absolute title to the properties. In repelling such a contention Macleod, C.J., observed as follows:

"The period of adverse possession is calculated for the benefit of the party setting up adverse possession, and if he loses, the there is an end of that period, and he must if he wishes to acquire a good title by adverse possession, start afresh after the decree."

In Singaravelu Mudaliar v. Chokkalinga Mudaliar (ILR 46 Madras 525), where a similar question came up for consideration, the Madras High Court expressly differed from the view taken by Macleod, C.J., and gave a ruling in the following terms:

"A judgment of a Court declaring that a party in possession of immovable property has no title to it has not the effect of interrupting the continuity of his adverse possession as against the real owner. If he continues in possession for 12 years before suit his title is perfected."

This conflict of views was set at rest by the ruling of the Privy Council in Subbaiya v. Mohamed Musthapha (AIR 1923 PC 175 [LQ/PC/1923/12] ). During the pendency of a suit for declaration that a certain property was subject to a trust, the property was sold in execution of another decree and the auction-purchaser was put in possession of the same. Subsequently the suit ended in a declaration that the property was trust property and such a declaration was made with the auction-purchaser on record. All the same no steps were taken to disturb his possession and he continued to be in possession for more than 12 years. When the second suit was instituted by the trustee for recovery of possession of the property the auction-purchaser contended that on account of adverse possession and limitation he had perfected title to the property. The plaintiff answered that the auction-purchasers plea was unsustainable in view of the declaration in the earlier suit that the property was trust property. Their Lordships of the Privy Council upheld the plea of limitation and observed that the declaratory decree had no effect on the nature and quality of the auction-purchasers possession. In considering the effect of that decree their Lordships observed as follows:

"At the moment when it was passed, the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late."

The principle underlying this decision has been accepted, followed and emphasised by the several High Courts in India, as is evident from the later decisions of these Courts. In Md. Tahir v. Bechey Lal (AIR 1936 Allahabad 466) it was ruled that:

"When a person is in adverse possession he is in the wrong and from the date of his possession starts maturing a title, and if a decree is passed against him declaring that his possession is adverse it simply emphasises the fact that possession is adverse, and if in spite of the decree the person remains in possession, his possession, if anything becomes still more adverse."

In Bijay Gopal De Chaudhuri v. Gopee Das Ray (ILR 1937 (2) Calcutta 234) the Calcutta High Court had occasion to consider the effect of a decree passed in a Zemindars suit for resumption of land, declaring the land to be mal land in the wrongful possession of the defendant. It was ruled that such a decree does not create any relationship of land-lord and tenant as between the plaintiff and the defendant and that the decree does not convert the defendants adverse possession into permissive possession. The situation that the Lahore High Court had to consider in Har Indar Singh v. Shiv Ram (AIR 1937 Lahore 602) was as follows: The plaintiff had instituted a suit for declaration of his title to a certain property on the ground that a cloud had been cast on his title by a certain act. During the pendency of that suit he was wrongly dispossessed of the property by the defendant. The plaintiff did not take any step to have his suit amended by adding a prayer for recovery of possession of the property. He did not also institute a fresh suit within the time allowed by law for recovery of possession of the property from the person in wrongful possession. It was ruled that the failure to take any such step within 12 years of the date of dispossession would result in an extinguishment of his title to the property on account of the adverse possession of the opposite party and that a decision in his favour in the declaratory suit would not affect the other partys adverse possession. The Bombay High Court ruled in Vishnu Janardan v. Mahadev Keshav (AIR 1942 Bombay 44) that "when a trespasser is in possession and the Court makes a declaration showing that his possession is wrongful, that does not affect the quality of his possession, but merely advertises the fact that it is adverse". The same High Court ruled in Dagadabai v. Sakharam (AIR 1948 Bombay 149) that even a decree for possession on the strength of title will not interrupt the adverse possession of the defendant unless his possession is disturbed as a matter of fact in pursuance of such a decree. The position was explained as follows:

"Whether a decree for possession in favour of the plaintiff does or does not interrupt adverse possession is purely a question of fact to be decided on the circumstances of each case. If the decree does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it has interrupted possession; nor can it in law affect the nature of the possession, unless it does so in fact. A decree for possession followed by an unsuccessful execution cannot be deemed as a matter of law to have the effect of either interrupting possession or altering its character."

To the same effect is the decision of the Patna High Court in Krishna Prasad v. Adyanath Chatak (AIR (31) 1944 Patna 77) where it was ruled that a mere decree, even a decree for possession, which is not executed, cannot possibly in itself interrupt adverse possession. It was further pointed out that the decree merely emphasises the adverse character of the possession and that there is no distinction in principle between a declaratory decree and a decree for possession which the decree-holder fails to execute within the statutory period. The effect of symbolical delivery of possession in execution of the decree for possession was also considered in that case and it was held that the symbolical delivery of possession must be held in law to amount at least to a momentary restoration of possession of the true owner, i.e., the decree-holder, against the judgment-debtor. The principle is that such symbolical delivery of possession through the machinery of the Court results in an interruption of the continuity of the possession of the opposite party, though it may later on turn out that such a delivery of possession has not been very effective. The High Court of Cochin had also accepted the principle as enunciated in the aforesaid cases on the question whether a mere declaration of title in favour of one party would have the effect of interrupting the adverse possession of the property by the opposite party. The answer to this question was given in the following terms in Parameswaran Namburi v. Narayanan Namburi (18 Cochin Law Reports 363):

"A declaratory decree does not disturb or change the character of the defendants possession and the latter can prove in a subsequent ejectment suit brought against him an adverse title acquired after the passing of the declaratory decree relying for that purpose on possession held partly before the declaratory decree and partly after it."

This position was affirmed in the later case in Abdul Kadir v. Kannu Pillai (39) 1123 Cochin Law Reports 215) where also it was held that a judgment of a Court declaring that the party in possession of immovable property has no title to it, has not the effect of interrupting the continuity of his possession as against the real owner.

6. The Travancore High Court alone has been maintaining a view contrary to that taken by the other High Courts in India on the question of interruption of the adverse possession of a property by one party as a result of the decree declaring that he has no title to the property. The view taken by that Court on this question has not been uniform throughout. In Chummaru Mani and another v. Kumaran Neelakandan and others (12 TLR 211) it was ruled that the cause of action for recovery of possession of a property wrongfully alienated by a karnavan of a Marumakkathayam tarwad must be taken to have arisen on the date of the sale, and not on the subsequent date when that alienation was set aside by a decree of Court at the instance of a junior member. It was further held that where the defendants alienees have been in adverse possession for over 12 years from the date of the sale, the suit for recovery of possession from such alienees would be barred by limitation. This decision was followed in Raman Narayanan v. Raman Govindan (20 TLR 252). The same question was again considered by a Full Bench of the Travancore High Court in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157). Two of the judges who participated in that decision held that the decree setting aside the sale and upholding the title of the tarwad to the properties alienated, has the effect of interrupting the adverse possession of the alienee and that the cause of action for recovery of possession of the property arises from the date of the decree cancelling the sale. The third judge took a contrary view and held that the adverse possession against the tarwad having commenced from the date of the sale, a decree in a suit merely declaring title cannot disturb the adverse possession which had begun before its institution or check the statutory bar of limitation. It was also observed by him that the mere pendency of a suit does not place the property sued for in the possession of the Court so as to check the bar of limitation. The question was again considered by another Full Bench of the Travancore High Court in Aiyappan Pillai Narayana Pillai v. Appili Pillai Lekshmi (26 TLJ 476) and there it was ruled that the decree declaring the invalidity of the sale does not break the continuity of the defendants possession and the starting point of limitation is the date of the defendants entry into possession under the sale deed, and not the date of the declaratory decree. One of the three learned judges who participated in that decision expressed himself in favour of the majority decision in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157) and was not prepared to differ from it. The next Full Bench decision in Souriyaru Chandi Anthirapper v. Krishna Prabhu Nagendra Prabhu (27 TLJ 284) ruled that a decree declaring the plaintiffs title to the property nullifies or neutralises the effect of the adverse possession of the defendant and gives the plaintiff a fresh cause of action and thus affirmed as correct the decision in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157) and differed from the contrary view taken in Aiyyappan Pillai Narayanan Pillai v. Appili Pillai Lekshmi (26 TLJ 476). In view of these conflicting decisions, the question was again considered by a Full Bench of 5 Judges of the same High Court in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109). The verdict given by this Full Bench was also in favour of the majority view in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157). It is seen that in giving such a verdict the learned judges were influenced mainly by the principle of stare decisis, as is evident from the following observation contained in the judgment of the Full Bench of five judges:

"The question is concluded by authority so far as this Court is concerned."

"In these circumstances the principle of stare decisis certainly holds good and the principle laid down in the Full Bench case cannot be lightly brushed aside."

These observations were made after referring to the decision in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157) and to the subsequent decisions which followed it. Even though the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) was thus sought to be rested mainly on the principle of stare decisis, other reasons were also stated to show that there is nothing fundamentally wrong about that decision. Subsequent to such an authoritative pronouncement in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) the decision in that case was followed by the Travancore High Court in subsequent decisions.

7. Before examining the question as to how far the ruling in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) could be sustained on the principle of stare decisis, it is necessary to examine whether that decision is supportable on general principles. The reasons stated by Sadasiva Iyer, C.J. and Padmanabha Iyer, J. in support of their decision in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157) and which have been quoted with approval in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) may be examined at the outset. Padmanabha Iyer, J. observed that:

"The decree setting aside the alienation to the 1st defendant and declaring the title of the plaintiffs tarwad to the plaint properties was a complete record and a title deed of the highest kind for the plaintiffs tarwad and must be given the same legal consequences as an admission of title by the defendant himself."

In spite of the greatest weight that may be given to a decree of Court declaring plaintiffs title to the property, it is difficult to understand how that decree can be deemed to be a decree based on any admission of the plaintiffs title by the defendant. Really the decree is passed in spite of the defendants negation of the plaintiffs title and such a decree by itself will not affect the adverse nature of the defendants possession. In considering the effect of a declaratory decree Sadasiva Iyer, C.J. observed as follows:

"It appears to me that that judicial declaration between the parties quashed all the legal effects of the juridical possession of the defendant till that date and made him on the date of the decree a mere detainer of the disputed property, his detention till then being of no effect as against his opponents rights on that date, the civil possession of the property as against the defendant being established."

Here again it is difficult to understand how the effect of the defendants possession can disappear by a mere declaration of the title in favour of the plaintiff and without that decree resulting in any actual disturbance of the defendants possession. The decree cannot be said to establish the possession of the plaintiff. It only declares his right to get possession of the property from the defendant. The defendants detention of possession of the property in spite of the decree declaring the plaintiffs title can only mean that the continuity of his adverse possession is being maintained by him, so that by the operation of the law of limitation he may acquire a prescriptive title against the original owner. Adverse possession can lose its legal effect only by an actual disturbance of such possession before such possession ripens into full ownership and hence it cannot be said that a mere declaration in the meanwhile that title is with the opposite party has the effect of completely effacing the legal effect of the defendants adverse possession upto the date of the passing of such a decree. Even though Sadasiva Iyer, C.J. has propounded the theory that a decree declaring the plaintiffs title to the property results in effacing the legal effects of the defendants possession till that date, the learned judge appears to have felt some doubt about the soundness of such a proposition. This is obvious from the following observations made by him in the very same judgment:

"I am free to confess that it appears to me that the question raised by the reference order is a very difficult one on which even subtle intellects can come to opposite conclusions and that plausible arguments can be advanced on both sides which prevent a satisfactory or irrefutable conclusion being arrived at."

The points raised by Sadasiva Iyer, C.J. and Padmanabha Iyer, J. were answered by Govinda Pillai, J. in his dissenting judgment where he made the following observations:

"A decree merely cancelling an alienation only affects the title and title (dominium) is distinct from possession (possessio). A man might have the one and not the other. Possession is detention with the intention of reaping the same benefit as the real owner."



8. Mir Akbar Ali v. Abdul Ajij (ILR 44 Bombay 934) is the other case relied on and followed in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109). The Bombay case has merely stated that with the passing of a decree declaring title to the property in favour of the plaintiff, the defendant will lose the benefit of his adverse possession up to the date of that decree and if he wants to prescribe against the real owner he must start his adverse possession afresh. Beyond laying down such a proposition, no reasons are stated in that decision in support of such a general proposition. All the cases which have taken the view that the decree declaring the plaintiffs title to the property has the effect of an interruption of the adverse possession of the defendant, appear to have proceeded on the basis that a declaratory decree has greater force than is apparent on the face of it. Otherwise it could not be said that a decree merely declaring title has any effect on the possession of the property by the defendant. Defendants possession may be with title or without title. His assertion of title may be baseless. All the same it is clear that when he asserts that he is in possession of the property as its owner, his possession is adverse to the real owner. It is not the declaratory decree that confers title on the real owner. The declaration made by the decree is only a judicial recognition of the pre-existing title in favour of the real owner. It was in spite of the existence of such a title in favour of the real owner that the defendant was holding the property adverse to the real owner. Obviously, therefore, the declaratory decree in itself cannot have any effect on such adverse possession by the defendant. The real owner loses his title to the property by virtue of the operation of the law of limitation which provides that a party in adverse possession of the property as against the real owner for a period of 12 years or more, acquires a prescriptive title as against the real owner. The operation of this rule of limitation can be arrested only by actual disturbance of the adverse possession at any time within the prescriptive period after its commencement. Even when there is a decree for possession in favour of the title-holder, he may lose his right to get recovery of possession on account of the operation of the law of limitation. If the decree is not executed within the time prescribed by law, the decree-holder will lose his right to get recovery of possession of the property in spite of the existence of the decree in his favour. Such are the normal incidents of the law of limitation and it is not possible to escape from such consequences by trying to enlarge the scope of declaratory decrees beyond their legitimate ambit. The following observations made by Venkitasubba Rao, J. in Singaravelu Mudaliar v. Chokkalinga Mudaliar (ILR 46 Madras 525) are pertinent in this connection:

"Adverse possession is a question of fact and always implies that the right to immediate possession subsists in the true owner, and not in the person having adverse possession. An adjudication that the true owner had a good title to possession is entirely consistent with the fact that actual possession is with another party who ousted the true owner and has been holding possession as against the true owner on his own behalf. I, therefore, fail to see how a decree which negatived the 1st defendants right could possibly be regarded in the nature of an interruption of the continuity of possession."

The same idea was expressed in Shaik Makbool v. Shaik Wajed Hoossain ((1876) 25 WR 249) in the following words:

"Whatever the decree might have been the defendants possession could not be considered as having ceased in consequence of that decree, unless he were actually dispossessed. The fact that there is a decree against him does not prevent the statute of limitation from running."

To the same effect is the decision of the Privy Council in Subbaiya v. Md. Mustafa (AIR 1923 PC 175 [LQ/PC/1923/12] ) and in the series of decisions of the several High Courts in India which have already been adverted to. As against the principles and reasonings underlying these decisions, we are unable to find any principle of law to support the contrary view taken in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109).



9. With all respect to the learned judges who participated in the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) we have to hold that the said decision is unsupportable even on the principle of stare decisis. On the questions which the Full Bench had to decide, the earlier decisions of the same High Court were not uniform. In Chummaru Mani v. Kumaran Neelakandan (12 TLR 211) it was ruled that a decree merely declaring title to the property in favour of the plaintiff will not interrupt the defendants adverse possession of the property. This was the earliest decision of the Travancore High Court on that question. A contrary view was taken in Kumaran Mathevan v. Mathevan Kauli (16 TLR 118) where it was ruled that a decree declaring title in favour of the plaintiff puts and end to the defendants adverse possession up to the date of the decree and that the plaintiff gets a cause of action for recovery of possession of the property from the date of such a decree. When the question again came up for consideration in Raman Narayanan v. Raman Govindan (20 TLR 252) the High Court was inclined to accept the view in Chummaru Mani v. Kumaran Neelakandan (12 TLR 211) in preference to the view in Kumaran Mathevan v. Mathevan Kauli (16 TLR 118). Subsequently the Full Bench which gave the decision in Kanakku Mathevan Ramakrishnan v. Ramakrishnan Mathevan (22 TLR 157) ruled by a majority that the defendants adverse possession is interrupted by a decree in favour of the plaintiff declaring his title to the property. That view prevailed for some time until it was ruled in Aiyappan Pillai Narayan Pillai v. Appili Pillai Lekshmi (26 TLJ 476) by another Full Bench that a declaratory decree in favour of the plaintiff will not break the continuity of the defendants adverse possession of the property and that the starting point of limitation for a suit for recovery of possession of the property from the defendant will be the date of the commencement of his possession, and not the date of the declaratory decree. Still later it was ruled by another Full Bench in Souriyaru Chandi Anthirapper v. Krishna Prabhu Nagendra Prabhu (27 TLJ 284) that a decree declaring the plaintiffs title to the property nullifies or neutralises the effect of the adverse possession of the defendant. Precedents were in such a state of conflict when the question again came up for the consideration of the Full Bench in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) and as such it could not be said that any of the two opposing views was holding the ground continuously for any length of time so as to attract the principle of stare decisis. All that could be said in favour of the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) is that in later years that decision was accepted and followed by the Travancore High Court as good law. As a precedent binding on that Court some sort of sanctity could be claimed for that decision. But the question that we have now to consider is what should be the law which this Court should accept as correct. On a general question of law this Court cannot have a precedent applicable to one portion of its territorial jurisdiction and a different precedent on the identical question applicable to the remaining portion of its territorial jurisdiction. So far as the former State of Travancore was concerned the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) had been accepted as good law, while the contrary decision of the Cochin High Court in Parameswaran Namburi v. Narayanan Namburi (18 Cochin Law Reports 363) and in Abdul Kadir v. Kannu Pillai ((39) 1123 Cochin Law Reports 215) on the identical question had been accepted as good law in the former State of Cochin. Both these areas are now within the jurisdiction of this Court. The question naturally arises as to which of the two opposing views should be accepted by this Court as good law for the entire jurisdiction.



10. We have already pointed out that the decision in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109) cannot be supported by sound legal principles. The decision in Parameswaran Namburi v. Narayanan Namburi (18 Cochin Law Reports 363) and in Abdul Kadir v. Kannu Pillai ((39) 1123 Cochin Law Reports 215) are in agreement with the principles laid down by the Privy Council in Subbaiya v. Md. Mustafa (AIR 1923 PC 175 [LQ/PC/1923/12] ) and also in agreement with the precedents of the several High Courts in India. We are also in full agreement with the principles and reasonings underlying these decisions and accordingly we feel no hesitation in subscribing to the view that a decree merely declaring the plaintiffs title to the property involved in the suit will not interrupt the defendants adverse possession of that property and that if such possession is allowed to continue undisturbed for a period of 12 years or more from the commencement of such possession, the defendant will acquire a title by prescription in spite of the passing of a decree in the meanwhile merely upholding the plaintiffs title. The original owners cause of action for a suit to recover possession of a property will arise on the date of the commencement of the defendants adverse possession, and not from the date of the decree declaring the plaintiffs title as against the defendant. This question does not appear to have directly arisen for decision by this Court on any prior occasion. In two cases the question was incidentally referred to. Isabi v. Abdulla (AIR (37) 1950 T-C. 60) is the first of these two cases. In that case the rights of the several co-owners were recognised by the decree in a suit to which all of them were parties, and the only question that had to be decided was whether any question of adverse possession or limitation would arise as between these co-owners. The question was answered in the negative. The question that we have to consider in the present case did not arise for decision in that case. Gopalan v. Sanku (AIR (38) 1951 T-C. 32) -1950 KLT 513 is the next case. There the plaintiffs suit for recovery of the property on the strength of title was held to be unsustainable because there was a prior decree granting the same relief and which was not executed but was allowed to become barred by limitation. However, in the course of the discussion of the several points argued in that case, it was observed that a decree declaring title in favour of the plaintiff will have the effect of interrupting the adverse possession of the defendant and a suit for recovery of possession of the property from him, brought within 12 years from the date of that decree, will be within time. These observations were merely a reflection of the ruling in Narayana Pillai v. Lekshmi Pillai (29 TLJ 109). The aforesaid observation in Gopalan v. Sanku (AIR (38) 1951 TC 32) was made without any consideration of the question on its merits. Any such consideration was also beyond the scope of that suit. Under such circumstances the casual observation made in that case cannot be taken as a considered decision of the question by this Court. In order that it may not be understood otherwise, we wish to make it clear that the casual observation made in the course of the judgment in that case on the question that we are now called upon to decide does not represent the correct exposition of the legal position. We have already explained what the correct position is.



11. In the present case the plaintiffs or their predecessors had not obtained possession of the properties involved in this appeal at any time subsequent to the date of the gift deed Ext. F dated 11.9.1101, which is the basis of the title set up by them. On the other hand the 1st defendant was in adverse possession of these items at least from the date of the suit O.S. No. 28/1102 which he had instituted in the Trivandrum District Court to have the gift deed Ext. F set aside. Such adverse possession by him continued uninterrupted for a period of more than 12 years prior to the institution of the present suit by the plaintiffs in the year 111

8. It is, therefore, obvious that the defendant had perfected the title to these items long prior to the commencement of this litigation and that the plaintiffs title to the properties had been lost by the defendants adverse possession for over the statutory period of 12 years. It follows, therefore, that the plaintiffs suit for recovery of these items from the defendants must fail.

1

2. In the result this appeal is allowed and the decree of the lower Court is set aside so far as it relates to items 1, 3 and 5 in the A schedule. In respect of these items the plaintiffs suit is dismissed with proportionate costs throughout to the appellant - 3rd defendant.