M.S. JAGADAMBAL versus SOUTHERN INDIAN EDUCATION TRUST & ORS.

Citation: [1988] 1 S.C.R. 722 · Decided: 02-11-1987 · Supreme Court of India · Bench: B.C. RAY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
M.S.JAGADAMBAL 
v. 
'f--· . 
SOUTHERN INDIAN EDUCATION TRUST & ORS. 
NOVEMBER 2, 1987 
B 
[B.C. RAY AND K. JAGANNATHA SHETTY, JJ.-
c 
D 
Civil Procedure Code, 1908: Sections 96-100--Suit for possession 
of property-Possession continues with title holder until defendant 
acquires title by adverse possession_(Court in appeal does not reverse 
finding of fact rested or proper appreciation of evidence. 
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. 
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 
....
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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 whi

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