VAIDHYANATHASWAMY Vs. LEKSHMI AMMA

JUDGEMENT

(1.) THE appellants herein are the Deity and the managing trustee of temple in Mangalore, who have sued for declaration of title and recovery of a compound of 13 cents and buildings thereon, situate in Mithranandapuram in the Fort area in the City of Trivandrum. The evidence on record indicates that a group of Pottis from Mangalore area used to go to the City of Trivandrum to officiate as priests in various temples there, and that the suit property had been acquired for their residence in the name of the aforesaid Deity, and used to be let to members of the group on rent. According to the plaintiffs, when Belippa Narayanan Potti was their local agent to look after the suit property, he let it to Padmanabhan Potti, from whom it passed to his widow, the 1st defendant, and she has sub -let one of the buildings on the property to the 2nd defendant. As the 1st defendant has lately begun to deny the title of the Deity, the plaintiffs have instituted the suit to resume the property from her. The defendants asserted title to the suit property in the 1st defendant by reason of adverse possession that she and her late husband had from 1085 M.E. (1910 A.D.), and claimed compensation for their improvements in case of eviction therefrom. The Munsiff found title with the plaintiffs and decreed the suit; but the Subordinate Judge, on appeal, while confirming the plaintiffs' title to the property, held possession within 12 years prior to the institution of the suit not been made out and therefore dismissed the suit. Hence this second appeal by the plaintiffs.

(2.) THE title of the Deity to the suit property has been concurrently found by the courts below on the basis of Ext. G, a judgment of the erstwhile High Court of Travancore dated September 9, 1905, allowing the Deity to resume the property from the then tenants thereon; and that finding of fact, is conclusive in this second appeal. Ext. H is a registered lease deed dated October 13, 1905, executed by one Subrayan Potti in which there is a clear recital that he has been given possession of the compound and the buildings as tenant thereof. Though no records have been produced to prove any execution having been taken on Ext. G judgment, Ext. H does show that subsequent thereto the plaintiffs got possession of the property and let it out to a tenant. P.W. 3, another member of the community, aged above 75 years, has sworn to Subrayan Potti having resided in the suit property under Ext. H, before it was let to the 1st defendant's husband.

(3.) THERE is no evidence in this case as to when the tenancy of Padmanabhan Potti came to be, and on what terms. Counsel for the defence contended that, as such necessary details about the tenancy have not been given, the averment of tenancy should not be found and acted upon by the Court. But, much the same vagueness was in the case which came up before the Supreme Court in Manohar Das v. Charu Chandra Pal ( : A.I.R. 1955 S.C. 228). The plaintiff therein sued for recovery or assessment of fair rent of the property in the occupation of the defendants, alleging that the same had been let to their predecessor on a rental arrangement 200 years ago and that the defendants, having secured an entry in the Record of Rights, published in 1931, that the land was rent -free, disclaimed the plaintiff's title to get rent or to resume the property. The defendants contended that they and their predecessors having been in possession of the property in assertion of an adverse title for over 200 years have excluded the plaintiff's title thereto. Neither the exact date of the tenancy nor the terms thereof were alleged or proved by the plaintiff in that case. The Supreme Court found the defendants and their predecessors in possession of the property for a considerable length of time without payment of rent, and yet granted a decree for assessment of fair rent to the plaintiff. It is a precedent that in suits instituted long after the grant of a demise, the non -mention of the terms of the demise or of the exact date of the demise is not a fatal defect, and that if it be found that the defendants were let into the property by or on behalf of the plaintiff, the plaintiff's title would not be lost by their long possession even without payment of rent unless exclusion of the plaintiff from the property to his knowledge for 12 years preceding the suit be made out by the defendants. There is no proof in this case that at any time beyond 12 years prior to the institution of the suit, the 1st defendant or her husband or anybody on her behalf had denied the plaintiffs' title or asserted an adverse title to the knowledge of the plaintiff.