Periasami Muthiriyan 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. First defendant

claimed that he owns the kudivaram. 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 Courts'' findings that the 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 3 years old, and purport to

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

other evidence on the point.

On the other hand first 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 first defendant has never been in possession of the land: and plaintiff was in possession oh 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 exhibits 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 first 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 first 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 first defendant that to allow plaintiff to rely now merely on possessory title is to fundamentally 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 the first defendant was in possession on the data of suit, and

that defendant and his predecessors in title were as occupancy tenants, paying melvaram to plaintiff. On these pleadings issues (2) and (3) 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 first 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 first 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 Narayan Row v. Dharmachar [1903] 26 Mad. 514, Ismail Ariff v. Mahomed

Ghous [1893] 20 Cal. 834. The case reported in Somasundaram Chetty v. Vadivelu Pillai [1908] 31 Mad. 531 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 sue a a title in the plaint. The present case is not similar. The case reported in Maikal Servai v.

Thamabaswami Servai [1914] 1 L.W. 853 is also hardly in point since there plaintiff was seeking for possession as against a party already in

possession. In such a suit, based on title, plaintiff 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 plaintiff''s plea so far as it was founded on possession also. The ruling of the

Privy Council in Ismail Ariff v. Muhomed Ghous [1893] 20 Cal. 834, 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.