Karthyayani and Another vs Kaliyani Amma

T.K.Joseph, J.—Defendants 1 and 2 are the Appellants. The Plaintiff sued for recovery of possession of the property described in the plaint schedule, on the basis of title and also on an alleged oral lease in favour of the Defendants. The plaint property is a Chitra about 2 1/4 cents in extent with 5cocoanut trees standing thereon. It was alleged to be situated in the northwestern part of the property allotted to the Plaintiffs thalami in partition and was said to be comprised in Sy. No. 299/1-3.

According lo the Plaintiff, Defendants I and 2 trespassed on this property and begun to lake the yield of the trees. As a result of mediation or arbitration, tire Defendants agreed to pay rent to the Plaintiff at the rate of Rs. 12/8 per annum from il5-8-05 and to surrender the properly when demanded. This arrangement was said to have been made on 26-2-1113. Alleging default in payment of rent, (the Plaintiff sued for recovery of possession, together with rent, past and future. Defendants 1 and 2 congested.

The 1st Defendant contended that .the plaint -property formed part of Sy.'' No. 297/3 which belonged to another branch of the Plaintiff''s tarwad, that the tarwad had only a lease hold right from tile V. T. K. Estate, that the same was sold for arrears of rent due to the Estate and was purchased by the 1st Defendant who got delivery of possession. It was further alleged that the plaint property was in the possession of one Pulayan Ayyappan and that he surrendered his possession to the 1st Defendant under Ex. XII. The alleged trespass and lease were denied. Adverse possession and limitation were also pleaded as a bar to the-suit. The 2nd Defendant contended that he had neither .title nor possession and that he was not liable for the reliefs claimed against him.

It was concurrently found that the disputed property formed part of Sy. No. 299/3 and that the same belonged to the Plaintiff''s thavazhi. As regards the oral lease the same has been found against. The trial Court''s decree was confirmed by the District Court though on slightly different grounds. The only question for decision in this. second appeal is whether the suit is barred by limitation and adverse possession.

This being a suit in ejectment the Plaintiff had to prove possession within 12 years of suit., The oral lease & the trespass having been found against, the Plaintiff cannot succeed unless possession within 12 years of the suit is proved. The trial Court found that since the Defendants who are in, possession have no title, they must be deemed to have trespassed on the property. This is not a correct view on the question.

The lower appellate Court found that Karullil branch of tire main tarwad was in possession of this property along with the adjoining property Sy. No. 297/3 and that they were treating this as common tarwad" property and as the Plaintiffs thavazhi acquired title by Ex. R decision in O.S. No. 164/1104 of the Anjikaimal District Court, the possession o� Karullil branch was possession on behalf of tha Plaintiff''s thavazhi also. It is this question that has to be decided in this second appeal.

The members of the common tarwad executed a deed Ex. J dated 23-9-1092. In 1104 Karullil branch who was in possession of this property along with several other properties filed a suit for partition, stating that Ex. J. was only a maintenance arrangement and not an outright partition. The suit was contested by the Plaintiff''s branch who contended that Ex. J evidenced an partition. Ex. N is a copy of the plaint in .that case and Ex. Q the judgment dated 26-11-1105.

That decision was based on a compromise petition by which slight modifications were made in the allotment of properties under Ex, j.. The judgment Ex. Q was set aside later and the suit restored to file, on the application of the 1st Defendant in that ease, who had not joined the compromise. Alter hearing his objections a revised judgment Ex. R was passed on 21-2-1107. It is under Ex. R that the Plaintiff''s thavazhi acquired title to Sy. No. 299/3.

As the suit was decided 0n the basis of the compromise, the question whether Ex. J was a deed, of partition was not decided on the merits. It was strenuously contended by Shri Mahalinga Iyer on behalf of the .Appellant that the, trial Court acted in excess of jurisdiction in admitting in evidence document relating to O.S. No. 164 of 1104 after remand of the case by tire High Ccurt in S. A. No. 45/1119. It was urged that the ease was remanded by the High Court for tho limited purpose of getting a fresh plan prepared by a competent person and that the trial Court had no jurisdiction to admit additional evidence. Reliance was placed on the decision in A.R.R.M.N. Narayanan Chettiar Vs. Kadiraya Goundan and Others,

The only question in that case was whether the Madura Taluk Court had jurisdiction to try a case remanded specifically to the Munsilfs Court o� Madura Town. It was held that the former Court had no jurisdiction. This decision cannot help the Appellants. Reliance was also placed on the decision in Ram Jeewan Lall v. Arjun Chowbey, 10 Suth (B). The remand order in that case was jnstrued as one for the purpose of taking some Special evidence only.

It was held that the trial Court was not at liberty to allow the parties to adduce fresh evidence is likely pleased. The scope of the remand has to be decided in each case on the terms of the order of remand. The wording of the remand order in S; A-. No. 45 of 1119 extracted in the judgment of the'' ''trial Court makes it clear that, the case was ross mended for fresh trial to be. conducted on the directions in the remand order. The direction related to the issue of a fresh commission to prepare a plan. The location of the property was the main point in dispute till then and when the High Court set aside the case for fresh trial without expressly limiting such fresh trial to the issue of a commission, it has to be understood that the parties were loot precluded from adducing other evidence. I am not inclined to accept the contention that the records, relating to O.S. No. 64 of 1104 filed after'' ''remand have to be discarded on this ground.

The defence ''case was that the plaint property was in the possession of Karullil branch of the tarwad It is seen from Ext. N that that branch was holding the property on behalf of the tarwad, their position was that Ext, J was only an'' Allotment of properties for maintenance. No doubt the Plaintiff''s case that Ext. J was an outright "partition. Nevertheless the parties agreed to reallot the. properties as per the compromise in that case.

It is therefore clear that the Karullil branch was not holding the property adversely to the other members of the tarwad. It was only by the decree dated 21-2-1107 that the Plaintiffs acquired exclusive title over the property. Under the circumstances it has to be held that the main tarwad was in possession of the property in 1107 and that the possession of the tarwad has to be deemed possession of, the Plaintiff''s thavazhi also. It therefore follows that the Plaintiff''s thavazhi was in, possession within 12 years preceding the institution of .the present suit. In this view tire plea of limitation necessarily has to fail. Defendants are not entitled to succeed on the question of adverse possession also as it is clear from Ext. N that J Karullil branch did not have the necessary animous, to hold the property adversely to the Plaintiffs or the, tarwad.

On behalf of the Appellants it was further contended that die decree in so far as it made to -2nd Defendant liable for mesne profits and costs was wrong, since he disclaimed title and possession.

The evidence in the case shows that it was the 1st ''Defendant who acquired title to and possession of Survey No. 297/3 and not the 2nd Defendant. The lease and trespass having been found against the Plaintiff,'' there was no justification for making the 2nd Defendant liable for mesne profits and costs. I set aside the decree against the 2nd Defendant.

The Plaintiff has succeeded but not on the grounds specifically alleged viz. trespass and oral lease. In fact the finding is that the oral lease to the Defendants alleged by the Plaintiff was false. The lease deed Ext. D under which Ayyappan was alleged o have been holding tire property under the Plaintiff''s'' thavazhi was found to be a fabrication. Taking all these into consideration, allow costs to the Plaintiff.

In the result, the decree appealed from is confirmed subject to the modification that the 2nd Defendant will not be liable for mesne profits or costs decreed. The Second Appeal is allowed the above extent only and dismissed in other respect. The parties will bear their costs throughout.