Sukumaran, J.@mdashThis appeal is by the State, whose suit O.S. No. 5 of 1969 for recovery of possession of the plaint schedule property from the sole defendant, failed in the court below. (During the pendency of the appeal, the respondent-defendant passed away and respondents 2 to 9 have been impleaded as the legal representatives) Nilgiris-Wynad Division of the then Madras Presidency, as it existed in 1880''s, with its 240 square miles area, smaller than the counties of Middlesex in England, or Louth in Ireland, or the shires of Haddington in Scotland or of Flint in Wales, presented the panoramic view of a long stretch covered with jungles, and threaded by several meandering streams, winding their way along successions of hills and dales. At about in altitude of 3000 feet, it was the scene of hectic activities of adventurous Europeans. A noteworthy feature of this plateau was the gold found in the roofs - gold coated invariably with sesquioxide of iron. The area contained many noted forests like Mudumalai and Benni Teak Forests, apart from other village forests. (See Ext. A10 proceedings of the Government of Madras No- 659 dated 8-7-1887 passed by the Hon''ble W. S. Whiteside, C. C., Commissioner, on the basis of the letter from A. E. Castlestuart Stuart, Special Assistant Collector, Nilgiris and Malabar on the conclusion of the settlement of Nilgiri Wynad. the prospects of converting the forests into coffee plantations, and the still brighter prospects of mining the gold found in the reefs and alluvial soil, perhaps attracted these adventurers. People came from Ireland. Scotland and England attracted by the lure of gold and by the adventure in the opening of Estates: such as Richard Williams Warrington (referred to in Ext. A6 indenture dated 29-5-1878) from Ireland; Adam Marry Anderson (referred to in Ext. A7 dated 31-10-1882) from Scotland; Samuel Aithen Miller (referred to in Ext. A1 sale deed dated 23-2-1865 and other documents) from England. The hopes of at least some, were dashed when gold mining turned out to ''be not profitable; and the coffee plantations fail victims to innumerable pests and diseases. (See the Resettlement Scheme submitted by A. H. A. Todd, I.C.C., Collector of Ganjam, forwarded to the Secretary to the Commissioners of Land Revenue and Settlement, Madras on 19-4-1924 - Ext. A18) This litigation is one fact of the history of the period.
2. The litigated property is what was once a dense forest on the Wynad plateau of Western Ghats known by the name ''Karinkanni Mala,'' perhaps figuratively so named as the ''Black Eyed Mountain.'' If its geography abounds about 463.45 acres of land, its history spans more than a century going by the records and evidence in the case. It unfolds the entrepreneurial expansion of Samuel Aitken Miller referred to above. He prospered, initially in his family and in his fortunes, alike. Marrying Allison Addis at St. Andrew''s Church, Madras on 10th November, 1869, he increased the family strength by seven children, Catherine Stuart, William Addis, Stuart Aitken, Alice Addis Stuart, Margaret Stuart, Maud Stuart and John Stuart, between 1870 and 1882. (See Ext. B32) He became owner of other estates such as Elk Hill (as is evident from Ext. A2 dated 8-8-1888) and Alikundi Estate (as seen from Ext. A8 dated 28-11-1882). Later the activities waned, until, ultimately he was received in the grave, grave No. A|451 of Kilpauk Cemetary, Madras (See Ext. B33).
3. The relevant facts and the short history of the litigation are given below.
4. That the property belonged to Thariyod family appears to be beyond controversy. It appears that the tar wad obtained the property by a jenmom assignment deed of 1035 M. E. executed by Swaminatha Pattar in favor of Elechi Akkamma, an ancestress of the tarwad (Ext. A21 judgment - Ext. A1 dated 23-2-1865 is a registered jenmom deed executed by Thariyod Chandu Nair in favor of S. A. Miller. The legal efficacy of this document is contested by the defendant. It is,however, conceded that S. A. Miller had some rights over the property and that be had been in possession thereof under the Thariyod family. (The tarwad claimed that the lease to Miller was in the year 1039 M.E. (1884) It further claimed that after the expiry of the period of 56 years provided in the lease deed, it obtained back possession of the property. The tarwad could not, however, prove these claims).
5. On 8-8-1880 a gift deed (Ext. A2) was executed by S. A. Miller in favor of his wife Mrs. S. A. Miller. According to the plaintiff, Mrs. Miller predeceased her husband. That, according to the plaintiff, was the reason for registry and other survey records again being changed in the name of Mr. S. A. Miller. (According to the defendant, on the death of Samual Aitken Miller, the name of his son Stuart Aitken Miller, whose abbreviation also is ''S. A. Miller,'' was entered in the survey and subsequent records). There was a failure of coffee plantations in Wynad at that time. The plaintiff says that this dismal picture prompted Miller and his family to abandon the property and leave Wynad by the beginning of the century. The allegation in this behalf is, however, made in a half-hearted manner as is evident from paragraph 5 of the plaint reading:
As the coffee plantation failed Mr. Miller appears to have abandoned the property and left Wynad, in the beginning of this century. Along with him his children also left disclaiming any right to the property, in other words, abandoning the property. Thus the property became ownerless in the beginning of this century and before the death of Mr. S. A. Miller.
(emphasis supplied)
According to the State, the abandonment of the property somehow escaped the notice of the Government officials at the time of resettlement and consequently, instead of the name of the Government, the name of late S. A. Miller happened to be registered in the records and books. The State claims that the property accrued to the State by escheat under the Common Law and as defined in the Madras Board''s Standing Orders. In the wake of the constitutional changes, the State claims that the right, title and interest in the property so vested in the plaintiff. When it came to know the correct details, proceedings as contemplated under the Kerala Escheats and Forfeiture Act of 1964 and other enabling provisions were initiated. Necessary notifications were published in the Kerala Gazette and in the District Gazette in 1968 (Exts ''A32 and B44). The defendant then preferred a claim before the Collector (Ext. B45 dated 8-6-1968). The defendant later challenged the legality and validity of such escheat proceedings under Article 226 of the Constitution and obtained a stay of the escheat proceedings. It was at this juncture that the Government issued orders under Ext. A3 dated 26-12-1968 to institute a regular suit for recovery of the property. The present suit was filed at that juncture for recovery of possession of the land. This fact was mentioned in the counter-affidavit filed on behalf of the Government in the writ petition. The writ petition was disposed of ultimately by Ext. B34 judgment dated 14-1-1971 by this court referring to these developments.
6. It is also claimed that the defendant is only a trespasser having come by possession of the property fully conscious of the infirmities in the title of Thariyod tarward, from whom by successive transfers, the defendant claimed to have become the present owner of the property.
7. According to the defendant, the property originally belonged in jenmom to one Swaminatha Pattar who assigned it to Elayachi Akkamma on 9-2-1860 under a sale deed engrossed on stamped palm leaf. On her death her rights devolved on the tavazhy. It is claimed that in the year 1039 M.E. the tarwad leased the property to S. A. Miller arid thus he was in possession thereof. The defendant would contend that Ext. A1 assignment deed was executed by five members of Kurumbala Peril Edam of Kurrumbala Amsom, who had no community of property with Thariyod tarwad but had some blood relationship. No Jenmom rights, according to the defendant, had been really conveyed under the aforesaid document. According to the defendant, there was a surrender of the lease by the son S. A. Miller in the year 1095 M. E. Three years later in the year 1098 M. E. the tarward claims to have granted a lease to one Kelu Nambiar and subsequently a kanom-kuzhikanom deed (Ext. B 26 dated 2-6-1926) in favor of Chatty Kannan. That was for a period of 35 years. The junior members questioned the validity of that document as an improvident transaction. A litigation O. S. No. 117 of 1928 of the Vythiri Munsiff''s Court (of which Ext. B 28 dated 10-3-1928 is the plaint) ensued. The suit was decreed on 14-3-1930 (Ext. A 21 being the original and Ext. B 60 the certified copy of the judgment) and appeal therefrom (vide Ext. B 74) was unsuccessful. The tarward levied execution and ultimately got delivery of the property under Ext. B 29 on 28-11-1936. Three years thereafter, even the patta was transferred in the flame of Thariyod Nair.
8. The averments regarding the dealing with and possession of the property as contained in the written statement do not appear to be much in controversy. The family was in possession of the property from 1936 after obtaining possession under Ext. B27 dated 28-11-1936. There are numerous documents, some of them registered, which deal with the transfer of the property and dealing with the same. An agreement Ext. B 3 of 8-5-1938 granted to Hussain the right to fell trees from the property. Subject to the above rights the property was later sold to Kuttanad Rubber Company Limited, in the year 1941 under Ext. B5 dated 4-3-1941. That Company in turn obtained release of the rights of Hussain on 25-9-1941 (Ext.. B 6) and was thereafter in possession of the property; patta was transferred in its name. It claims to have installed an estate bungalow and raised plantation crops in substantial area of the property. The Company sold the property to Sreenivasa Naidu on 10-6-1957 under Ext. B 13. Exts. B 7 to B 11 are receipts evidencing payments by Sreenivasa Naidu to Kuttanad Rubber Company, ranging between 13-2-1954 and 15-3-1955. He in turn assigned the rights in the property to the defendant under Ext. B 15 dated 29-3-1963.
9. Permit for falling the trees was obtained on the basis of the petition Ext. B16 dated 7-5-1963 under the Madras Preservation of Private Forests Act, based on the quick reports of the Village Assistant and the Revenue Inspector (Ext. B 19 dated 12-5-1963 and Ext. B 20 dated 13-5-1963, reply) and the report of the Forest Range Officer Ext, B21 dated 18-6-1963. There was an allegation that the defendant, under the pretext of this permit, started felling trees from adjacent forests belonging to the Government. There is a reference to this and other litigations between the defendant and the Government, with which this case is not directly concerned.
10 It is sufficient to note that the suit by the State alleging such trespass ultimately failed as is seen from the judgment in O. S. No. 4 of 1965, Ext. B 51 dated 29-11-1969 (Ext. B69 dated 15-1-1964 is the plaint and Ext. B49 dated 16-10-1967 is the commission report in that case) The trial court judgment Was affirmed by the High Court in A.S. No. 346 of 1970, Ext. B 75 dated 17-2-1975 being the judgment.
11. The defendant disputes, the claim of the plaintiff about the abandonment of the property by Miller and his children. The protest registered at the time when the District Collector initiated escheat proceedings is referred to. It is asserted that there was no escheat nor lapse nor bona vacantia as understood under Article 295 of the Constitution in respect of the property. The claim of the State to title and possession over the property is thus strongly controverted.
12. According to the defendant, the name ''S. A. Miller'' noted in the resettlement land records is that of a son of late S. A. Miller. Other pleas including one of limitation were raised by the defendant. A claim for value of improvements in the event of there being a decree for eviction was also put forward.
13. An attempt to dispute the identity of the property was made by filing an additional written statement subsequently.
14. Though the trial court raised as many as twenty two issues and recorded findings thereon, it is unnecessary to deal with all these issues in view of the limited nature of the arguments advanced in appeal on behalf of the State. They pertain mainly to the findings on issues 1 to 4, 11 and 12, considered very elaborately by the court below in paragraph 5 to 22 with due advertence to every argument addressed on either side. Issue No. 15 relating to limitation discussed in paragraphs 27 to 32 in the judgment of the court below, is the other aspect on which arguments were addressed before us.
15. In the course of its discussion of the issues, referred to above, the court below entered the following factual findings:- (i) S. A. Miller did not acquire any jenmom right in the property under Ext. A1 assignment and the property was not ancient jenmom of Thariyod tarwad. (ii) The fact that Miller was in possession of the properly in 1865 and thereabout is not disputed, (iii) The surrender pleaded by the defendant of the property by Miller, to Thariyod tarward is not proved, (iv) The Thariyod tarwad was in the possession of the property from 1926; Chatta Kannan came by possession of the property under Ext. B26 Kuzhikanom deed executed by Thariyod tarward. (v) In the suit instituted as O.S- No. 117 of 1926 the tarwad obtained possession of the property from Chatta Kannan on 28-11-1936. (vi) The State has not proved that Mr. and Mrs. Miller and their children had died without leaving any legal heirs. (vii) There was no evidence to prove that Mrs. Miller predeceased her husband. (viii) The state has not even prima facie proved that the property vested in the, State by escheat. (ix) The suit property is a ryotwari land ever since 1900 and not a jenmom land, (x) The Madras Board''s Standing Orders govern the ryotwari lands, (xi) On a proper interpretation of the effect of the Madras Board''s Standing Orders, Village Account Manual and other Government records, and the evidence in the case, there was nothing to warrant an inference that the property was abandoned by Mr. Miller and his heirs. (xii) The State had not taken actual possession of the suit property at any time. The State cannot recover the property from the defendant who is the successor-in-title of the patta-holder, and had paid the revenue (xiii) The person mentioned in Ext. A20 settlement register, is not the father Samuel Aitken Miller but the son Stuart Aitken Miller (xiv) The proceedings Ext. A3Q (b) dated 25-7-1921 by which the application of the Thariyod family for registration of Jenmom right (Ext. A 30) was rejected had no legal basis and it did not affect the rights of the family. (xv) The possession of the property was with the Thariyod family even before 1926. (xvi) The suit of the State is barred by limitation
16. What was urged before this court by the learned Government Pleader appearing on behalf of the State, related to the case about the abandonment of the property by Mr. Miller and his legal heirs. He based those contentions on Exts. A11, A14, A15 (a), A15 (b), A18, A20, A21, A32, B44, B28 and B34, and the testimony of P.W1. the Tahsildar and the admission contained in page 19 of the deposition of D.W. 1. We shall, therefore, examine the case of the appellant on the basis of the contentions so urged. The argument of the State based on the above evidence may be summarised as follows:- The settlement register Ext. All (of''1837) describes the property as "unoccupied''''. Ext. A14 settlement register of the subsequent period describes the property as anadheenam signifying thereby that the land is abandoned. The dement evident under Ext. A 20 which took place between 1914 and 1923 indicates that the old survey No. 835 corresponded to resurvey No. 684. The description of the property is ''UD'', the expansion of which is ''undeveloped dry'' and that the patta 219 was shown as issued to S. A. Miller. This description of the property also, according to the Government Pleader, points to the abandonment of the property by Mr. Milder and his legal heirs. The information contained in the letter of the Special Settlement Revenue Inspector to the Adhikari and his reply Ext. A 15(b) dated 6-12-1920 are relied on to show that the whereabouts of Mr. Miller were unknown, which, according to the Government Pleader, justifies an inference of the abandonment of the property by Miller and his legal heirs.
17. Ext. A32 is a notification dated 27-2-1968 in the Kerala Gazette calling for objections regarding the vesting of Mr. Miller''s property in the Government by escheat and by bona vacantia. The basic information retied on in justification of the notification is the reply of the Tahsildar of the year 1921 in respect of this property. A similar notification was published in the Kerala District Gazette and it is Ext. B 44 dated 21-6-1968. No objections were filed by Milter and his legal heirs to the aforesaid notification. According to the Government Pleader, this shows the total absence of interest in the property by the legal heirs of Miller and is therefore confirmative of the abandonment of the property. Ext. B34, is, the judgment of this court in O.P. No. 4768 of 1968 which evidence the fact that escheat proceedings have been abandoned by the State Government when the present suit was instituted. A statement in Ext. B 28 plaint dated 10-3-4928 in the suit instituted by the junior members of the Thariyod tarwad about Miller and his legal heirs having left the property and an observation in Ext. A 21 judgment about the possibility of Miller having abandoned the property are the other items of evidence relied on in support of the contentions so urged by the Government Pleader. The report Ext. A18 dated 24-4-1924 is clutched upon to establish the ruin of the coffee plantations in the Wynad area and the ill-effects thereof on the pioneering planters in that area at about that time, again probabilising the case of the plaintiff that Miller and his legal heirs had abandoned the estate.
18. After considering the submissions so advanced, and scrutinizing the documents so relied on by the learned Government Pleader, we are clearly of the view that the submissions of the State are devoid of merit and that the State has not been able to establish the case either of escheat or of abandonment of the property by Miller and his legal heirs.
19. The word ''Anadheenam'' contained in the settlement registers does not justify the inference that the property is an abandoned one. It must be borne in mind that these words have to be understood under the relevant Madras Standing Orders and other provisions relating to the maintenance of the books and records issued by the then Madras Government. The word ''anadheenam'' so understood means ''not occupied''. It does not mean that the property is an abandoned one. This is the clear affect of the Madras Board''s Standing Order No- 28. The word only indicates that it is unoccupied or not cultivated or left waste or fallow. Clause (1) of Standing Order No. 28 provides that lands which a ryot has left waste will not be struck out of his patta on that account. Similarly, mere prolonged absence or non-occupation does not invalidate the right of the registered owner and the obligation to pay the fixed assessment continues, whether the land is cultivated or left waste. The Village Officer in Ext. A15(b) which is a reply to the quary made under Ext. A15 (a) in the ''year 1920 had not stated that Miller had abandoned the property. The worst that can be assumed against Mr. Miller and others, in the above circumstances, would be that the property remained uncultivated at their hands for some time. That, however, does not lead to the inference of abandonment.
20. Even if Miller was hot heard of for more than seven years, the authorities should have taken recourse to action under Board''s Standing Orders 31 (6) for transfer of patta as envisaged therein in the event of a person not being heard of for over seven years, (the situation contemplated under. B. S. O. 31 (6). Similarly action under B.S.O. 31 (7) should have been taken in the event of there being persons in possession of property for over 12 years without the title (the situation contemplated under D.S.O 31(7) ). These actions have not been pursued admittedly by the officials in the present case, The inaction in that belief tends to show that the State did not then visualize a situation of abandonment.
21. There is no evidence either to show that the property in question had been sold at any time for arrears of revenue. This leads to the conclusion that revenue had been duly, properly and promptly paid in respect of the property. The State with whom are the relevant documents evidencing the payment of revenue or the default therein, had not chosen to produce those documents, despite being called upon to do so by the order in I.A. No. 1634 of 1976. There was no case in the affidavit in answer thereto about the documents having been destroyed. The only plea in justification of the non-production of the documents was that they were not available. The court below rightly draw an adverse inference against the State in relation to the non-production of those documents in the above circumstances. There is also much significance in the fact that till 1967, the State did not initiate proceedings in respect of the property as escheated or abandoned land, though there were enabling legal provisions available under the Madras Endowments and Escheat Regulations. And under the rules framed by the Madras Government, the Village Officer and the Village Accountant are obliged to inspect the property at least once in an year and ascertain, inter alia, the extent of abandoned property. The conspicuous omission to take action treating the property as abandoned property for over a period of 60 years after the alleged date of abandonment, is a fatal factor discrediting the plea of the State regarding such abandonment. Suffice it to say, therefore, that the mere reference to the property as uncultivated or unoccupied, does not at all justify an inference of abandonment of the property by Miller and his legal heirs.
22. As regards the plaint in O.S. No. 117 of 1928 (Ext. B28) and the judgment Ext. A21, we are of the opinion that they are of no assistance whatever to the appellant-State. The plaint Ext. B28 does not contain any clear admission that Miller had abandoned the property. The actual text of the statement as given in paragraph 3 is to the affect that Mr. Miller had possessed the property under the tarwad under a lease of 1039, that after his death his widow was in possession of their property and that after their surrender or relinquishment, the tarward was in possession and enjoyment of the property. The words do not posit a case of abandonment. It can equally mean, the tarwad was in possession and enjoyment of the property. The words mean that they had left the property, may be on surrendering the same in favor of the tarwad, or relinquishing their interests therein. Having regard to the setting and context in which the statement occurs, we are of the opinion that the statement does not at all amount to an admission on the part of the members of the tarwad, of Miller and his heirs having abandoned the property.
23. Ext. A21 judgment is equally of no avail. The State is not a party to the judgment. The State cannot rely on such a judgment which is not interpartes. Moreover, the judgment had been subjected to an appeal and this is evident from the document Exts. B67 and B74. The appellate judgment has not been produced. In the above circumstances, it is not open to the State to rely on any stray observation contained in Ext. A21 Judgment. Even that sentence is only:
Ext. XXXIII shows that the land was unoccupied in 1898, and the lease if any to Mr. Miller must have been long prior to it. If there was any such lease, it is very doubtful whether the lease evidenced by Ext. D could have been intended to be acted upon, unless it be taken that Mr. Miller was understood to have as good as abandoned the land.
(emphasis supplied)
We are unable to treat the above sentence as amounting to a finding of the court that Miller had abandoned the property. The court below was correct in taking such a view. The observation happened to be made while discussing the possibility of there being a lease in favor of one Subraya Kownden on 5-3-1885.
24. The infructuous escheat proceedings also do not in any way help the State in establishing a case of abandonment. The reference therein to a reply of the Tahsildar in the year 1920 itself is based on Ext. A15 (a) and (b), The correspondence exchanged between the Adhikari and the Special Revenue Inspector do not at all indicate about there being an abandonment of the property by Miller and his legal heirs. Under Ext. A15 (a) the correct address of the various persons including Mr. Miller referred to in the communication was sought. In the reply under Ext. A15(b) it was stated that the address was not available. There was a guess: "may be in England". These vague and indefinite remarks, which do not appear to have been based on any enquiry made in that behalf, cannot at all be treated as necessary or substantial evidence to establish a plea of abandonment of property.
25. Equally irrelevant and insufficient is the evidence contained in the report of Mr. Todd, Ext. A18. The report does indicate about a failure of coffee plantation in that area. It cannot, however, be straightaway inferred from that circumstance that all persons in that area have abandoned the property. As a matter of fact, the settlement registers, would give a contra indication, many areas including former plantations still being occupied by the previous owners. It may be that no active operations had been carried on in the property having regard to the uneconomic result of such operations. It is not permissible to draw an inference of abandonment in respect of a specific property from such a circumstance alone.
26. In a way, the abandoned escheat proceedings (as evident from Exts. B44 and B32 Gazette notifications) demolish the case of abandonment in 1900 as pleaded in the present suit. The notifications state that "nothing is heard about the said Miller or his legal heirs after 1921". If therefore there were materials available with the State about Miller or his legal heirs upto 1921, they should have been made available in the case. This too has not been done.
27. No reliance can be made on the absence of objection by Miller or his legal heirs to Ext. B44. The defendant had questioned the very jurisdiction of the State to issue the notification in the writ petition filed before this court. This court had stayed the said notification pending decision of the writ petition. Ultimately the State decided not to pursue those proceedings. This court, after adverting to the counter-affidavit of the State observed while disposing of the writ petition by Ext. B34 judgment:
It is obvious from the above statement that the proceeding as per Ext. P1 has been abandoned by the second respondent.
In the above circumstances, the alleged absence of objection by Miller to Ext. B44 does not advance the case of the State.
28. It may be noted that the evidence in the case is to the effect that Miller died in 1907. That Miller had left seven children born between 1870 and 1882 is evident from Ext. B32. There has not been any attempt whatever to adduce any clear evidence in relation to the whereabouts of these legal heirs. No documentary evidence whatever is available to show that the legal heirs of Miller had abandoned the property. P.W. 1 the Tahsildar who has been examined in the case, has concededly no direct knowledge in relation to these matters. His evidence has been discussed in detail by the trial court and found to be unworthy of acceptance. We agree with the assessment of that evidence. In the above circumstances, the plea of abandonment of the property, as attempted to be made out by a reference to the above documents, fails signally.
29. We have dealt with the question of ''abandonment'' above, with reference to material and evidence in the case and the interpretation judicially placed on the concept of ''abandonment''. Abandonment postulates a specific mental condition in respect of the person who abandons and the property in relation to which abandonment is alleged. The court below has referred to the observations of the Supreme Court in
The letting land lie fallow does not necessarily lead to the inference of abandonment, because it is susceptible of explanation in a hundred other different ways. And it would be very harsh to hold that a proprietor, because he exercises his right of abstaining from cultivating his land, must on that account be taken to have abandoned it.''
A later decision of a Division Bench of the Punjab High Court in Kanhiya Shanker v Mohobata Sedhu, AIR 1960 Pun. 495 at p. 496 has explained the concept, according to us correctly, while it observed:
The courts do not presume in favor of abandonment and the onus rests on the party asserting abandonment. It is, therefore, incumbent upon the party pleading abandonment to establish his plea. In this case, defendants No. 1, the appellants before us, who set up abandonment, have to prove the same by unequivocal and decisive evidence. ''Abandonment means the act of intentionally and without reference to any particular person or persons. In this case it has to be a voluntary relinquishment of possession of the property by its owners with the intention of terminating their ownership but without vesting it in any other person.
A person abandoning his property gives up all hope, expectation or intention of recovering his property. The property, after it is abandoned, results in complete divestiture of the title of its owner and having ceased to be his property it becomes the subject of appropriation by the first taker or by its occupant who reduces it to his possession. Abandonment is not a surrender of property because the latter term connotes its relinquishment to another. It is an act whereby a person gives up his ownership without creating proprietary rights in another person.
There are two primary elements of abandonment, namely the intention to abandon and the external act by which effect is given to the intention and both these elements must concur. The intention must be clear and unmistakable indicating that it is the ownership which is being relinquished and not the possession or any other subordinate right consistent with the retention of ownership. A person abandoning permanently divests himself of his title. The act of abandonment from its very nature has to be voluntary, absolute and unconditional, excluding element of coercion, and pressure of any kind.
30. The court below has found that the tarward was in possession of the property in 1926 and earlier. On an evaluation of the evidence in the case, we are inclined to agree with the finding. In that view of the matter, the finding of the court below that the present suit instituted in 1969 is barred by limitation is also not open to challenge. If the cause of action as pleaded by the State in para 6 of the plaint, arose in 1900, then the suit filed on 1-1-1969 is barred by limitation, going by Articles 149 of the limitation Act. The State apparently seeks to rely on the circumstances that the discovery of its title was made in 1967. The court below rightly repelled such a contention, relying on Ouseph Ouseph v Palakadumala, AIR 1954 T.C. 451.
31. We agree with the conclusion reached by the court below. The contentions urged in the appeal having thus become totally unsuccessful, the appeal must necessarily fail. In that view of the matter, it is unnecessary to deal with many of the other aspects which have been elaborately covered by the court below, and which were incidentally referred to by counsel for the respondent in support of the decree and decision of the court below In the result, the appeal fails and it is accordingly dismissed but, in the circumstances, without any order as to costs.
