Case Note & Summary
The dispute arose between co-sharers of a joint family property in Barasat, District 24 Parganas, comprising about 34 acres of land with two separate buildings, namely Bamacharan Babu's Bati (eastern portion) and Baitakhana Bati (western portion). The plaintiffs, Saradindu Kumar Mukherjee and another, claimed partition and possession of their share in the joint property, having acquired co-sharer interests in 1941 through private conveyances and an auction purchase. The defendants, Prokash Chandra Mukherjee and others, claimed exclusive title by adverse possession to the eastern building and the land on which it stood, alleging that their branch had constructed it with their own funds and had been in separate possession for over twelve years. The property had been requisitioned by the military authorities under Rule 75-A of the Defence of India Rules, 1939 from 1942 to 1946, after which possession was restored to the defendants. The plaintiffs filed the partition suit in 1955. The trial court and first appellate court held that the kobalas and sale certificate were comprehensive and conveyed all structures, but found that the defendants were in separate possession of the eastern building. The High Court, in appeal, held that this separate possession did not ripen into adverse possession because the Government requisition from 1942 to 1946 broke the continuity of possession. The defendants appealed to the Supreme Court by special leave. The main legal issue was whether the defendants had perfected title by adverse possession for twelve years, considering that the period of Government requisition could be tacked to their prior possession. The appellants contended that the military authorities had taken possession from them and restored it to them in 1946, so the possession of the authorities was really under or on behalf of the defendants and caused no break. The respondents argued that the requisition was independent statutory possession and broke continuity. The Supreme Court examined the provisions of the Defence of India Act, 1939, particularly Sections 2, 19, and 19-B, and Rule 75-A of the Rules. It held that possession taken by Government under requisition was by virtue of statutory powers, irrespective of any consideration of the rights of the true owner or occupier, and was neither permissive nor as agent for the prior possessor. Therefore, the period of requisition could not be added to the period of prior trespass to complete the prescriptive period under Article 144 of the Limitation Act, 1908. The Court relied on the Privy Council decision in Karan Singh v. Bakar Ali Khan, 9 I.A. 99, which held that government attachment interrupted possession. The Court reasoned that if possession was taken from a trespasser and restored to the lawful owner, the trespasser could not tack the period of government occupation to his preceding trespass. Consequently, the defendants' possession from 1946 to 1955 was less than twelve years, and they had not acquired title by adverse possession. The High Court's decision was affirmed, and the plaintiff's claim for partition remained within limitation.
Headnote
A) Limitation - Adverse Possession - Tacking of Government Requisition Period - Defence of India Act, 1939, Sections 2, 19, 19-B, Rule 75-A; Limitation Act, 1908, Article 144 - The issue was whether the period during which the military authorities held possession of the property under requisition from 1942 to 1946 could be added to the prior possession of the defendants to complete the twelve-year prescriptive period. The Court held that possession taken under Rule 75-A of the Defence of India Rules, 1939 was by statutory authority, irrespective of the rights of the true owner or prior occupier, and was neither by permission of the defendants nor in the character of their agent. Consequently, such possession caused a break in the continuity of adverse possession and could not be tacked. The defendants' possession from 1946 to 1955 was less than twelve years, so no prescriptive title was acquired. (Paras Not mentioned) B) Civil Procedure - Pleadings - Prayer for Possession - Code of Civil Procedure, 1908 - In a suit for partition, a prayer for possession of the plaintiff's share may be inferred from the pleadings; the court may grant such relief if established. (Paras Not mentioned) C) Precedent - Applicability of Privy Council Decision - Karan Singh v. Bakar Ali Khan - The High Court correctly relied on Karan Singh v. Bakar Ali Khan, 9 I.A. 99, where the Privy Council held that government attachment interrupted possession and the period of such attachment could not be tacked. The same principle applied to statutory requisition under the Defence of India Act. (Paras Not mentioned)
Issue of Consideration
Whether the defendants-appellants perfected title to the property by adverse possession for the prescriptive period of twelve years or more, and whether the period of Government requisition from 1942 to 1946 under Rule 75-A of the Defence of India Rules, 1939 could be tacked to their previous possession for the purpose of limitation under Article 144 of the Limitation Act, 1908.
Final Decision
The Supreme Court held that possession by Government under Rule 75-A of the Defence of India Rules, 1939 was taken by statutory authority, not by permission of or as agent for the prior possessor, and therefore could not be tacked to the prior possession to constitute twelve years' adverse possession. The defendants' possession from 1946 to 1955 was less than twelve years, and they had not acquired prescriptive title. The High Court's decision was affirmed.
Law Points
- Possession of immovable property by Government or military authorities under Rule 75-A of the Defence of India Rules
- 1939 is statutory possession taken irrespective of the rights of the true owner or occupier
- such possession is neither permissive nor as agent for the prior possessor
- therefore the period of requisition cannot be tacked to the previous possession to constitute twelve years' adverse possession under Article 144 of the Limitation Act
- 1908
- the suit filed in 1955 after restoration in 1946 was within limitation because only about nine years of exclusive possession had elapsed.
