KUNHOYI Vs. SEYDUTTI

JUDGEMENT

(1.) his Second Appeal is by the plaintiff in a suit for recovery of property with rent, past and future. The properties are said to have been leased orally in Thulam 1121 by Avaran Haji, the plaintiffs assignor, to the 1st defendant. Plaintiff has taken an assignment of the landlords rights as per Ext. A4 dated 22-12-1947.

(2.) 2nd defendant was impleaded in this suit as one in joint cultivation of the property with the 1st defendant. The 2nd defendant disclaimed the lease, and set up an independent title in himself. He denied the title of Avaran Haji to any portion of the suit property and added that even if he had any title at any time that was extinguished by limitation and adverse possession of himself and his predecessors-in-interest The learned Munsiff found the title of the suit property with the plaintiff, and the oral lease mentioned by the plaintiff to be true and decreed the suit. The learned Subordinate Judge, however, found, on a very detailed discussion of the evidence in the case, that the oral lease could not be true and that the plaintiff had no title to the property and dismissed the suit. Hence this Second Appeal.

(3.) The learned counsel for the appellant laid great stress on certain admissions made by the defence witnesses in the box, particularly to a statement in the cross examination of Dw. 2, who is the son of Ummayyakutty Umma under whom the plaintiff traces his title, where, after referring to Exts. A2 and A3 he concluded saying: Thus, plaintiff became entitled to the suit property. This statement coming from a defence witness would have gone a great way in proof of the plaintiffs title to the property but for the fact that other portions of the same deposition betrays that the witness was in utter confusion with regard to the identity of the property that he was adverting to. For, in another portion of the same deposition, he has sworn that the suit property is not included in the property assigned by his father (the reference is admittedly to Ext. A2 the conveyance by his mother).