Kodinthirapalli village Devaswom by trustees, Parameswara Iyer and another vs Janardhanan alias Appukutty Thampan Avergal, styled Raman Kumaran alias Nellapathiyil Raman Rayiravar alias Puliyakotta Mootha Nair (died) and others

Krishnaswami Nayudu, J.—Defendants 1 and 2 are the appellants, The suit property belonged in jenm right to the plaintiff''s steam and it

was in possession of one Eledath tar-wad in saswatham and anubhavam rights granted to them under Ex. B. 1 of the year 1869. The Eledath tar-

wad assigned their rights under Ex. B. 1 to one Ittirankandath tar-wad in 1895 under Ex. A. 3. The Ittirankandath tar-wad usufructuarily

mortgaged items 1 to 5 to the Devaswom of defendants 1 and 2 under Ex. B. 2 dated the 31st March 1897. On the 22nd of August 1898 under

Ex. A. 4 a document was executed on behalf of Ittirankandath tar-wad in favour of the plaintiff''s steam practically renewing the original grant of

the property under Ex. B. 1. On the 5th March 1913, there was a puramkadom document or a further mortgage executed by the Ittrankandath

tar-wad to the Devaswom of defendants 1 and 2. On the 16th November 1913, the karnavan and two other members of the Ittirankandath tar-

wad executed Ex. A. 5, the result of which was the conversion of the anubhavam right under Ex. B. 1 to that of a kanom. On the 19th July 1915,

all the members of Ittirankandath tar-wad executed an assignment of their anubhavam rights to the Devaswom of defendants 1 and 2.; The suit is

for recovery of the arrears of the michavaram and the plaintiff''s share of jenmabhogam and costs on the basis of Ex. A. 5, the converted kanom

deed executed in favour of the plaintiff''s steam by the Karnavan and two other members of the Ittirankandath tar-wad. Both the Courts decreed

the suit. Hence this appeal. The main contention urged on behalf of the first and second defendants, who are the appellants in this appeal, is that

throughout, ever since the execution of Ex. B. 2, the usufructuary mortgage, and subsequently the puramkadam document, Ex. B. 3, and finally Ex.

B. 4, the deed by which the Ittirankandath tarwad absolutely assigned its right in favour of the Devaswom of defendants 1 and 2, the defendants''

Devaswom, was enjoying the property in saswatham and anubhavam right and was not holding them as kanomdar, and that, therefore, the suit for

recovery of jenmabhogam and other relief''s could not be maintained, and that in fact the defendants'' Devaswom were always prepared to pay the

michavaram as provided for under the original deeds, Ex. B. 1 and A. 4. The case of the appellants is that they have in any way acquired

permanent rights of tenancy by adverse possession and enjoyment of the property in saswatham tenure from 1927 when notices were exchanged

between the plaintiff and the defendants.

On the 20th October 1927, a notice Ex. B. 5, was issued on behalf of the plaintiff''s shaman to the defendant''s Devaswom referring to the

document executed on behalf of Ittirankandath tar-wad and demanding michavaram and jenmabhogam as provided under Ex. A. 5, to which a

reply was caused to be sent on behalf of the defendants'' Dewaswom by Ex. B. 6, dated 14th November 1927, in which it was urged that the

defendants'' Devaswom had taken an assignment of the anubhavam right held by the Ittirankandath tar-wad and that they were not, therefore,

liable under Ex. A. 5, and defendants Devaswom refused to comply with the demands made in Ex. B. 5. The matters were allowed to lie over until

again in 1937, the plaintiffs steam sent a notice to the defendants'' devaswom Ex. B. 7, dated 6th November 1937, demanding the michavaram, to

which again the defendants'' Devaswom caused a reply notice to be sent asserting that they were in possession of the properties in anubhavam right

and not as kanomdars or under the tenure granted to the Ittirankandath tar-wad under Ex. A. 5 by the plaintiff''s steam. It is urged that this

assertion in 1937 and the subsequent possession and enjoyment of the property in pursuance of that assertion is sufficient to constitute possession

so as to confer on the defendants'' Devaswom the rights of permanent tenure by adverse possession. Reliance is placed on the decision in Thazhe

Nelloli Pazhe Peringati Athiramankutti and Another Vs. Thazhe Nelloli Pazhe Peringati Uppari alias Kunhi Parayayi and Others, . That was a

Letters Patent Appeal against the judgment of Venkataramana Rao, J., in Athiramankutti v- Uppari AIR 1937 Mad. 126. In that case a jenmi and

a melcharthdar brought a suit on an agreement of tenancy of the year 1869 which provided that the tenants at the end of every 12 years should

take a renewal charging a sum of Rs. 50 as kanom and that the tenants might enjoy the property without surrendering or causing it to be

surrendered. There was a subsequent renewal in 1895 which provided for possession to continue as hitherto, meaning thereby as per the terms of

the earlier document of 1869. There were certain prior proceedings between the parties in which, on a construction of the terms of the tenancy it

was held that the tenancy under the document was a permanent tenancy and not a kanom tenure. There was therefore a prior adjudication on the

construction of the terms, of the tenancy viz, that the defendants in that case were entitled to hold under a saswatham or permanent tenure.

Subsequent to these proceedings the defendants continued in possession, asserting to hold the property on permanent tenure, and this was held

sufficient to confer on them the title by adverse possession. In that case, as observed by Venkataramana Rao, J., as it was not a mere assertion in

a judicial proceeding but there was an adjudication, and in pursuance of that adjudication, the defendants were holding the property as permanent

tenants for more than a period of 12 years, it could reasonably be held that they had acquired title by prescription. This judgment of

Venkataramana Rao, J., was confirmed in Aihiramankutti v. Uppari 45 All. 419=19 L.W. 288 (P.C.). In the L. P. Appeal, the following

observations of Lord Salve-sen of the Privy Council in Muhammad Mumtaz Ali Khan v. Mohan Singh (3), were cited before the learned Judges

who disposed of that appeal, viz.,

We are unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can,

by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion having been successfully challenged, obtain a

title as an under proprietor of the lands.

In the Privy Council case the claim that the defendants made was that they were in possession as under proprietors and asserting title as such,

and they having been in possession in assertion of an under, proprietary right for more than 12 years, they had a title by prescription by virtue of

this long and continuous possession. This contention was rejected, the Judicial Committee holding that it could not be sufficient to confer on the

defendants a title by prescription. The observations of the Judicial Committee have been explained by the learned Judges in Athiramankutti v.

Uppari 45 All. 419=19 L.W. 288 (P.C.), where they distinguished the case by pointing out that in the case they were dealing with what was relied

on was not a mere assertion but possession sufficiently open and hostile, its adverse character and the nature of the right claimed, being brought

home to the owner''s knowledge. Apart from that, it was not a mere assertion but an earlier adjudication of judicial proceedings that formed the

basis on which further possession was continued and asserted, and as such the views taken by the learned. judges in Athiramankuutti v. Uppari

AIR 1938 Mad. 570-47 L.W. 386 and Athiramankutti v. Uppari AIR 1937 Mad. 126.could be supported.

But in the present case, excepting sending by way of a reply notice, no other overt act has been shown on the part of the defendants appellants

as expressing an intention on their part to possess the property in saswatham right. Mere possession and enjoyment of the properties would not be

sufficient to constitute possession so as to establish saswatham rights, as even a kanomdar is entitled to possession. Whether it is a kanom or

whether it is anubhavam right, the kanamdar or the person in whose favour the anubhavam right is granted is entitled to be in possession, and the

mere fact that possession after assertion of right by way of a reply notice has been found in the present case is not sufficient to enable the

defendants appellants to acquire title by adverse possession.

Lad Salve sen in Muhammad Mumtaz Ali Khan v. Mohan Singh 45 All. 619=19 L.W. 283 (P,C), while holding that by reason of a mere

assertion in a judicial proceeding without such assertion having been successfully challenged, one can obtain no title as an under proprietor to the

lands, observed as follows :

Such a judgment might have very far-reaching results and would, almost certainly lead to a flood of litigation. It is notorious that in actions for rent

or enhancement of rent or for abetment, the persons in possession are prone to maintain rights which they do not possess, and if for any reason, as

in the present case, no judicial determination is arrived at but the parties continue on the original footing, a mere lapse of so short a period as six or

twelve years (which might be amply explained upon other grounds) would deprive the landlord of his proprietary rights unless in the meantime he

had brought a declaratory suit Co settle once and for all the terms on which possession was held...

I am in respectful agreement with the observations of the learned Law Lord that mere assertion on the part of a tenant that he is holding a

property otherwise than under the tenure originally granted to him should not be held, by virtue of his being in. continuous possession, to confer on

him rights higher than those he would be entitled to under the terms of the tenancy. In the result, the appeal fails and is dismissed with costs

(Advocate''s fee: one set). No leave.