NEELU Vs. SUBBIAH PILLAI

JUDGEMENT

(1.) This second appeal presented by the 4th defendant arises out of O.S. No. 2 of 1116 on the file of the Kuzhithurai Munsiff's Court which was for recovery of possession of a building. As originally filed the plaint sought relief on foot of an oral lease dated 2.1.1113 granted by the first plaintiff to defendants 1 and 2 at a rent of Rs. 2 per mensem. The oral lease having been denied, the suit was amended seeking relief based on title. The contention was that the building in question was put up by Aundel Easwarivadivu, the mother of defendants 1 and 3, that she made a gift of it to her daughter the 3rd defendant in 1099 under Ext. 2 and that the donee in her turn transferred it in the year 1112 to her daughter the 4th defendant under Ext. 7. The 4th defendant soon afterwards leased the building to the first defendant as per Ext. 8. The possession of the first defendant is thus accounted for by the defence. Except the positive case of a lease as above stated the plaintiffs did not put forward any ground accounting for the possession of defendants 1 and 2. The 2nd defendant is the husband of the first. The property originally belonged to one Thanu Aundal in whose name the pattah was issued. She had two sons, the first plaintiff and Ayyappan Pillai and a daughter who is the above mentioned Aundal Easwarivadivu. In year 1093 a Sthreedhanam deed was executed in favour of the first defendant securing immovable property. That hypothecation deed is not before court. It was not produced in the Trial Court and on production in the court of appeal it stands rejected. The first defendant enforced the hypothecation by a suit, O.S. 702 of 1099 in which the entire 18 cents covered by Sy. Nos. 138/A and 139/A and B are included as forming the hypotheca. Ext. A is the plaint in that case. In Ext. B the written statement presented by the first defendant there who is the first plaintiff in this case, he contended that the building in question was put in possession of the first defendant in order that she and her husband who had no place for living might reside there and be satisfied in respect of the interest upon the hypothecation by such occupation. Relying upon this arrangement the liability for interest was repudiated. In the replication, Ext. C, the first defendant averred that the building was given by the first plaintiff not to her but to her mother Aundal Easwarivadivu who was in occupation of it. The first defendant used occasionally to visit the house and stay there particularly for purposes of childbirth. One such occasion was very near the date of the replication. This dispute was not resolved by Court, the parties having agreed to have the matter determined by oath. The oath was taken and judgment, Ext. 14 followed awarding the first defendant here (who was the plaintiff there) the principal amount as also interest. In execution of the decree the entire hypotheca including the house appears to have been brought to sale through court but the sale was averted by discharge of the decree debt by payment as is seen from (Ext. E) the execution diary. Ext. 14 is dated 29.12.1099. About 2 months before that, Aundal Easwarivadivu executed the above deed of gift under which the 4th defendant claims.

(2.) Both the courts below have concurrently found against the case of the contesting defendants that the building in question was erected by Aundal Easwarivadivu. They also concurrently found against the oral lease set up by the plaintiffs. They nevertheless concurred in granting a decree to the plaintiff for possession on the ground that the defendants had not established their title by adverse possession. This is a wrong approach to the question. When a plaintiff claims relief by way of recovery of possession of immovable property on foot of title, he has to prove not merely that he had title once upon a time but that he has subsisting title. This onus he could discharge by proving that he had possession within 12 years of the suit or that the possession of the defendants is derived under him by way of a lease or by way of permission. The lease alleged, as already stated, has been found against and in the view that the courts below took that the onus was upon the defendants to prove adverse possession in default of which there could be a decree in favour of the plaintiffs, neither of the courts below considered whether the plaintiffs had a subsisting title. Even though the lease alleged by the plaintiffs has not been made out, they may, nevertheless have subsisting title if they are able to show that the possession of the defendants had a permissive origin. It is quite possible for a Court to decide in favour of permissive character of the origin of the possession even apart from evidence directly showing the induction of a party into permissive possession. The decision in XIV Cochin 264 followed in XXXVIII Cochin 96 has been accepted as laying down good law by a Division Bench of this Court recently.

(3.) In my judgment it is necessary that the question as regards the plaintiffs' having or not having a subsisting title should be considered by the Trial Court as relief could be given to the plaintiffs if it is found that they have a subsisting title to the property sought to be recovered. I therefore set aside the judgments and decrees of both the courts below and remand the case to Trial Court for consideration of the question as to whether the plaintiffs have a subsisting title to the property sought to be recovered. In view of the fact that the attention of the parties does not appear to have been revetted on this particular aspect, I allow the parties to adduce whatever fresh evidence they have to elucidate this question. The costs hitherto incurred will abide and will be provided for in the decree of the Munsiff.