Holding

Possession continues with the title holder unless the defendant acquires title by adverse possession; submergence does not interrupt constructive possession, and the respondents did not perfect title by adverse possession.

Summary

M.S. Jagadambal, the widow of Nagappa Naicker, sued the Southern Indian Education Trust and others to recover a low‑lying, seasonally submerged parcel of land (described as a "pit" or "Pallam") that her husband had purchased in 1929. She claimed continuous possession by her husband and herself and alleged that the respondents had encroached upon the land after its measurement in 1954. The trial judge held that she was in possession within the 12‑year limitation period and decreed in her favour. The Division Bench of the Madras High Court affirmed her title but reversed the finding of possession, holding the evidence vague and concluding the suit was barred, while also noting the respondents had not acquired title by adverse possession. On appeal, the Supreme Court reinstated the trial judge’s finding, ruling that possession continues with the title holder unless the defendant acquires title by adverse possession, and that submergence of land does not interrupt constructive possession. The Court held the respondents did not perfect title by adverse possession and that an appellate court should not overturn factual findings properly appreciated by the trial court. The appeal was allowed and the Division Bench judgment set aside.

Issues considered

Whether possession of land that is seasonally submerged continues with the title holder for the purpose of the limitation period.
Whether the respondents acquired title by adverse possession of the disputed land.
Whether the suit is barred by the 12‑year limitation period under the Civil Procedure Code.
Whether an appellate court can reverse a factual finding on possession made by the trial judge after proper appreciation of oral evidence.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 96, s. 97, s. 98, s. 99
Indian Limitation Act, 1877

Subjects

possessionadverse possessionlimitation periodconstructive possessionsubmerged landcivil procedureappellate reviewtitleencroachment

Judgment

M.S.JAGADAMBAL
A
v. 'f--· .
SOUTHERN INDIAN EDUCATION TRUST & ORS.

NOVEMBER 2, 1987

B [B.C. RAY AND K. JAGANNATHA SHETTY, JJ.-

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 offact rested or proper appreciation of evidence. ....
c 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 prop-
erty was a pit which required Rs.2,000 for filling it was sold for meeting
certain family expeuses.
D
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 bis"life time,
and subsequently in her possession and enjoyment, and t)Jat the neigh-
E bouring 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 contend-
ing 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
F 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
G the suit property after measurement and demarcation of the land by the
Tahsildar in Jan/Feb, 1984, and, therefore, the appellant was in posses-
sion 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
H before the Division Bench whic~, while affirming the appellant's title to
722
M.S. JAGADAMBAL v. SOUTHERN INDIAN EDN. TRUST 723
I
the property, held that the appellant had satisfactorily established title A
~ 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.
B
; -.J.. 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
A.,_ holder. C

Allowing the appeal,

HELD: 1. Possession continues with the title holder ubless and
until the defendant acquires title by adverse possession. There would be o
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 submer-
sion and one which continues for a length of time. [730D-E] 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. F
\ 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 sub·
merged, but it makes little difference in the position oflaw. As a general
rule, possession of part is in law possession of the whole, if the whole is
otherwise vacant. l731D-E] G

2. The appellate court does not reverse a finding of fact rested on
A._, proper appreciation of the oral evidence. This is a rule of practice which
has almost the force of law. 1728B-C]

Sarju Pershad v. Raja Jawaleshwari Pratap Narain Singh & Ors., H
724 SUPREME COURT REPORTS [ 1988] 1 S.C.R.

A ]1950] Vol. I SCR 781at783 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 dispos-
sessed. This conclusion was also based on the credibility of the witnesses
B examined by the parties. The Division Bench reversed that finding with-
out 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,
C about the western boundary of the property purchased by the res-
pondents and the discrepancy in the area of the property purchased
by first respondent which has been shown differently in Exs. P6, P7
and PS, and the contradictory stand of DW 3, Secretary of the first
respondent-trust, who was the star witness in support of the respon-
dents' case, regarding the first respondent's title and the appellant's
D 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
E 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 respon-
dents did not produce any evidence in support of the plea of adverse
F 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 euable the respondents to -
make good their lapse. [727G l

The Judgment of the Division Bench has, therefore, to be set
G aside, and that of Single Judge restored. [731Fl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 235
of 1974. A-
From the Judgment and Order dated 2.8.71 of the Madras High
H Court in O.S.A. No. 37 of 1963.
M.S. JAGADAMBAL v. SOUTHERN INDIAN EDN. TRUST [SHETfY, J.] 725

S. Padmanabhan and A.T.M. Sampath for the Appellant.
A
M. Abdul Khadar, Mrs R. Ramachandran for Respondent
No. 1.

,
I
I
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
B

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: c
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 D
document that the property was not fetc"ing 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 meetin~ 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 E
Srinivasa Naicker, and last of the road, Ramanatha ¥udaliar'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 F
.~ 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 prop-
erty 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') G
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 land owned
by the SIET. One Kuppuswami Naiker was the owner in possession of H
726 SUPREME COURT REPORTS [19SS] 1 S.C.R.

A a land measuring 35 grounds 19S9 sq. ft. This entire land was sold to
Rani of Vuyyur for Rs. 10,000 under Ex. P6 dated July 30, 1940. In the 'f...
schedule, the property sold was described as R.S. No. 3S59/l, 3S59/
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
B property sold was only 35 grounds 19SO 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. 3S59/1, 3S59/2
and 3S59/3 part and 3S72 in Teynampet measuring about 3S grounds.
In the schedule to Ex. P7 the property was described as lying east of
C Nagappa Naicker's land and Mount Road. It will be seen that though \
the Rani Yuyytir pu{chased 35 grounds 19S9 sq. ft. the extent I
mentioned in Ex. P7 wa·s about 3S grounds. On February 11, 1954 the _,,.A.
SIET exchanged its land under Ex. PS with the property belonging to
the defandants 1 to 4 in the suit. Ex. PS recited that the SIET was
conveying an extent of 43 grounds 1324 sq. ft. comprised in R.S. Nos.
D 3S59/1, 3S59/2 and 3S59/3 and 3S72 Mount Road Madras. Here again
the land has been described as bounded on the west by Nagappa
N aicker's land and Mount Road. The curious thing to be noted is
about the extent of land exchanged. 3S grounds purchased by the SIET
under Ex P7 has become 43 grounds 1324 sq. ft. in the Exchange deed
Ex.PS.
E
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
F 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
G held that Nagappa during life time and the plaintiff after Nagappa's
death had bee_n 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
H 1954. That means, learned judge held that the plaintiff was in posses-
M.S. JAGADAMBAL v. SOUTIIERN INDIANEDN. TRUST [SHETTY, J.) 727

sion within 12 years prior to the date of filing the suit. Accordingly the
lr" A
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 B
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 ~as 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 c
I
i, by adverse possession. So stating the Division Bench allowed the
appeal and dimissed the suit.

Hence this appeal by the plaintiff.
D
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. E

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. F
\ 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 G
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. H
728 SUPREME COURT REPORTS [ 1988) I S.C.R.

Padmanabhan about the manner in which the Division Bench con-
A
sidered 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 cone-

~
lusion. The other view is that the Court of appeal must attach due
B 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:
c
),
"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
D 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 compe-
tent 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
E that when there is conflict of oral evidence of the party on
any matter in issue and the decision hinges upon the credi-
bility 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
F the credibility lies, the appellate Court should not interfere
with the 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
G 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 A
considerations weighed with the trial judge. The Division Bench
appears to have missed the important features which have not been
H properly explained by the defendants.
M.S. JAGADAMBAL v. SOUTHERN INDIAN EDN. TRUST [SHETfY, J.) 729

y
. First, about the western boundary of the property purchased by
A
the defendants. In all the sale-deeds forming links in tll~ defendants
title Ex. P6 of 1940, Ex. P7 1953 and Ex. PS of 1954, \he western
boundary has been shown as the property belonging to N agappa. 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 B
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
:ipart from R.S. No. 3862 and 3863.

Second, the SIET purchased under Ex. P7 the land measuring 38
I
grounds. Within a couple of months thereafter the SIET conveyed c
l.. under the deed of exchange Ex. PS, 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. PS. One fails to understand how that waxing could be possi- D
ble without an attempt to grab the adjacent property.

Thirdly, the plaintiff has come fdrward 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 E
was a star witness in support of the defendants case. The sale deed Ex.
P7 was in his name. The exchange deed EX. PS 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 F
I
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. PB was written after measurement and demarcation of the G
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 H
730 SUPREME COURT REPORTS [1988] 1 S.C.R.

A to the defendants case which the Division Bench has failed to
appreciate. 'i

The force of the second contention, urged for the appellant can-
not 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
B 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
j
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
c 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
D be no continuance of adverse possession when the land remains sub-
merged 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 ' ')'
E has been applied by the Privy Council in Basanta Kumar Roy v. Secret-
ary 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 "dis-
possession" but its meaning is well settled. A man may
F cease to use his land because he cannot use it, since it is
under water, he does not thereby discontinue his posses-
sion: 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
G enjoyment, when the land is not capable of use and enjoy-
ment" (Per Cotton, L.J. in Leigh v. Jack (I). It seems to
follow that there can be no continuance of adverse posses-
sion, when the land is not capable of use a.nd enjoyment, so ,..
long as such adverse possesion must rest on de facto use and
occupation. When sufficient time has elapsed to extinguish
H the old title and start a new one, the new owner's posses-
M.S. JAGADAMBAL v. SOUTHERN INDIANEDN. TRUST (SHETfY, J.] 731

sion of course continues untill there is fresh dispossession, A
and revives as it ceases.

In the case of Secretary of State for India v. Krishna-
moni Gupta, [1902) ILR 29 Cal 518 their Lordships' Board
applied this view to a case, where a river shifting its course
B
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 reflood-
ing was seasonal and occurred for several months in each
year. It was held that when the land was re-submerged the C
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 acquisi-
tion of title against the true owner."

These principles, in our opinion, are equally applicable to the D
present ~ase. The plaintiff has proved title to the property. The
defendants have not acquired title by adverse possession. The prop-
erty as described in the sale deed Ex. P2 was a vacant land fetching no
income. It was called "Pallam" or pond that was seasonally sub-
merged. The entire land might not be seasonally submerged, but it
makes little difference in the position of law. "As a general rule E
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. F

N.P.V. Appeal allowed.