Periasami Muthirian and Another vs Anandayi Ammal and Others

Wallace, J.—The original suit was by plaintiff for a declaration that the plaint nanja land belongs to her and for permanent injunction

restraining defendants from interfering with her enjoyment. It was admitted that the melwaram in the land belongs to plaintiff. 1st defendant claimed

that he owns the hudivaram. The first Court decreed the suit and the lower Appellate Court concurred. Defendants appeal.

The first point taken is that there is no evidence on which the lower Court''s findings that plaintiff has title to the land can be based. This, I think,

must be allowed. Ex. C the inam register does not make a definite statement as to the particular details of the grant. Exs. A and B are only

comparatively recent title-deeds and do not recite that the kudivaram was sold. The mere fact that they are more than 30 years old, and purport to

have been attested by one Kathaperumal, paternal uncle of 1st defendant, cannot be any evidence that the kudivaram also was sold. There is no

other evidence on the point.

On the other hand 1st defendant also has not proved title. There are concurrent findings on this point and there is no evidence to prove his title.

There are also concurrent findings that 1st defendant has never been in possession of the land; and that plaintiff was in possession on the date of

suit. The lower Appellate Court holds further that plaintiff has been in possession of both varams for over 40 years, but, since to prove possession

further back than 12 years from 16th October 1919 (the date of plaintiff''s first witness''s deposition) it relies solely on Exs A and B, mere recitals

in which cannot prove the fact of possession, I must take it that its real finding is, relying as it does on plaintiff''s 1st witness, that plaintiff has been in

possession for 12 years prior to 16th October 1919. The suit was filed on 17th September 1918. So the position is this: neither party has

established title, plaintiff was in possession on date of suit and for 11 years previously, and 1st defendant has never been in possession. In such

circumstances is plaintiff entitled to a decree maintaining her possession by grant of the declaration and injunction she prays for.

It is argued for 1st defendant that to allow plaintiff to rely now merely on possessory title is to fundamentally to alter the nature of the suit. But

this I do not agree with. The plaint sets out clearly plaintiff''s possession since 1877, and denies that defendants ever had possession. The written

statement countered with a denial that plaintiff ever had possession, and assertions that 1st defendant was in possession on the date of suit, and that

defendant and his predecessors-in-title were, as occupancy tenants, paying melvaram to plaintiff. On these findings issues 20 C.P 834 : 20 I.A. 99

: 6 Sar. P.C.J. 305 17 Ind. Jur. 321 : 10 Ind. Dec. (N.S.) 501 and 31 M.P 681 : 4 M.L.T. 344 were framed, raising the question whether plaintiff

was in possession and the parties went to trial with that issue clearly before them. It was incumbent on 1st defendant to produce any evidence he

had that plaintiff was never in possession and that he or his predecessors-in-title were in possession.

I think this is clearly a case where if plaintiff had actually been dispossessed by 1st defendant, she could have successfully maintained a suit for

possession against him u/s 9 of the Specific Relief Act. It is quite plain on the findings that plaintiff was in long anterior and peaceable possession at

the time of the threat of dispossession. A person in such peaceable possession is, until the contrary is shown, presumed to be the owner, and is

entitled to maintain his possession against all but the true owner. See Narayana Rao v. Dharmachar 26 M.P 514. Ismail Ariff v. Mahomed Ghouse

20 C.P 834 : 20 I.A. 99 : 6 Sar. P.C.J. 305 17 Ind. Jur. 321 : 10 Ind. Dec. (N.S.) 501. The case reported in Somasundaram Chetty v. Vadivelu

Pillai 31 M.K 681 : 4 M.L.T. 344 is a case where the plaintiff, having failed to prove lawful title, relied on legal possession by prescription, i.e,

again attempted to prove a title, legal, though not lawful, and was non-suited because he had not put forward such a title in the plaint. The present

case is not similar. The case reported in Maikal Servai v. Thambuswami Servai 25 Ind. Cas. 984 : 1 L.W. 858 : (1911) M.W.N. 784 is also

hardly in point since there plaintiff was seeking for possession as against a party already in possession. In such a case a suit based on title must fail

when the title is not proved. The present suit is by a party in possession to be maintained in possession against one having neither title nor

possession, Such a suit by its very nature relies not on title only but on possession also and defendants, as I have held, clearly realised the

importance of attacking the plaintiff''s plea so far as it was founded on possession also. The ruling of the Privy Counoil in Ismail Ariff v. Mahomed

Ghouse 20 C. 834 : 20 I.A. 99 : 6 Sar. P.C.J. 305 17 Ind. Jur. 321 : 10 Ind. Dec. (N.S.) 501 and illustration (g) to Section 42 Specific Relief Act

are direct authorities for the maintainability of the suit, and for the correctness of the decree of the lower Appellate Court.

I see no reason to interfere and dismiss this second appeal with costs.