Murugesa Mudali vs Syed Alli and Another

Odgers, J.—In this case the Subordinate Judge has found that the lease of the suit land Ex. B. is genuine. He also finds that the plaintiff

leased the land to defendants 4 and 5 and father of defendants 3 to 6. A portion of the land was subsequently sold in 1902 to defendant 2 and the

Subordinate Judge has found that from that date defendant 2''s possession was adverse and, therefore, the plaintiff''s suit is time barred in respect

of that portion. He does not give any reason for holding that defendant 2 was in adverse possession and it is clear that if the sale to defendant 2

was effected while the tenancy under Ex. B was still subsisting, defendant 2''s possession would not be adverse until the tenancy was put an end to.

The Subordinate Judge has not considered the question of what happened to the lease Ex. B, which purports to be a tenancy-at-will and would go

on from year to year until put an end to.

Secondly, in the absence of a finding that the tenancy had been pat an end to or was not subsisting on the date of the sale to defendant 2,

defendants 2''s possession would not be adverse to the plaintiff, the landowner. As authority for this proposition I would refer to Davis v. Kazee

Abdool Hamed 8 W. R. 55 Baikuntha Nath Sarma v. Chaitanya Charan Chaudhury [1920] 57 I. C. 991 Uday Kumar Das v. Katyani Debi A. I.

R. 1922 Cal. 87 and a recent decision of this Court D. Mohideen Rowther v. Jayarama Iyer A. I. R. 1921 Mad. 42 The finding, therefore, of

adverse possession cannot be accepted without a fresh finding as to whether the tenancy under Ex. B. was still subsisting on the date of the sale to

defendant 2. No specific plea was taken that the tenancy had been put an end to, but the District Munsif had discussed the evidence as to the

possession of the suit plot from 1885 to 1902 and appears to come to the conclusion that the lease had ceased to exist. This evidence is not

mentioned by the Subordinate Judge, and I must ask him to consider all the evidence and come to a finding on the above point.

Objection is also taken to his finding in para. 4 of his judgment that defendant 2 had held possession of a plot of 16 yards by 14 yards in plot A

adversely to the plaintiff for more than 12 years. In coming to this conclusion the Subordinate Judge finds that the title to this piece of land was

never in the plaintiff, although it was included in his sale-deed, and he relies for this finding on Ex. 7 which, he says, clearly shows kamalsahibs right

and the sale by him to Periathambi. No such recital appears in Ex. 7 and, secondly, that document cannot be relied on as proving the point.

Again he states that Ex. 7 describes the plot as

West of Kurnool Road and the house of defendant 2.

This is also incorrect, for in the document only the house of defendant 2 appears as the eastern boundary.

Another point on which he relies is the recital of the boundaries in Exs. 1 and 2. Those are documents executed between the defendants. The

recitals in them can in no way be binding on the plaintiff. This finding also cannot be accepted and the Subordinate Judge will be asked to record a

fresh finding on this point after re-considering all the evidence and remembering that Ex. 7 does not purport to state the facts mentioned by him.

Time for the finding, six weeks, and objections, seven days.

(The subordinate Judge gave the following findings in compliance with the above order.)

Finding.

In the second appeal the High Court calls upon this Court to find upon two points: the first being whether or not at the date of the purchase by

defendant 2 from defendants 3 and 4 under Exs. 1 and 2, the lease under Ex. B was subsisting; and the second being, whether, and if so, how far

defendant''s 2 possession of the plot of 16 yards by 14 yards, if included in plot A, could be regarded as adverse to the plaintiff.

There is thus no difficulty in identifying the location of the plot purchased under Ex. 7 by defendant 2 as being marked as in Ex. 9.

I am unable to hold upon the evidence that, so far as the portion of plot A covered by Exs. 1 and 2 is concerned, the contention of defendant

2, as to his having acquired title by adverse enjoyment, could be upheld. Defendant 2 appears to have built two houses and sunk a well in that plot

and the question may arise as to whether he is not entitled to be compensated for the improvements he has effected if he has to give up possession

to the plaintiff; but that point has neither been put into issue nor have I been asked to find in regard to it. If my finding with regard to the title to that

plot is going to be upheld, and defendant 2 should be considered entitled to compensation for improvements a further enquiry may become

necessary about that matter.

[After the receipt of the findings the Court delivered the following]

JUDGMENT

Respondent 2 has filed a memorandum of objections but his vakil is absent.

Plaintiff cannot press his memorandum of objections. I, therefore, accept the finding and modify the lower appellate Court''s decree

accordingly with proportionate costs.