VASUDEVA PUTHILLATHAYA Vs. KUNHIRAMA PUDUVAL

JUDGEMENT

(1.) This appeal by the plaintiffs concerns only items 2 to 4 of the suit properties. These and others belonged to Tazhakat Mana and .were leased by it under Ext. A 1 dated the 7th August, 1922, for a term of 40 years to one Govindan Nambi, who assigned his rights to the first plaintiffs brother on the 7th May, 1929. According to the plaintiffs, at the time of Ext. A 1, item 2 was in the possession of the first plaintiff, item 3 was in the possession of one Rama Puduval who afterwards surrendered his rights to the first plaintiffs brother, item 4 was in the possession of the Mana itself, and more than 13 years before the date of the suit the first plaintiff leased item 2 and his brother leased items 3 and 5, to the 2nd plaintiff and while the latter was in possession, the defendants committed trespass on the properties in the year 1954. On these averments the plaintiffs sued in ejectment. The defendants denied the title of the plaintiffs and the alleged trespass and pleaded that the plaintiffs never came into possession of the properties but that they were leased by the Mana to the first defendant under Ext. B 1 dated the 19th September, 1942. The two courts have concurrently held, that the plaintiffs never came into possession of items 2 to 4, that the defendants never committed trespass but that they came into possession pursuant to Ext. B 1; incidentally they have also held, that the plaintiffs have no title to the properties. On these findings the suit was dismissed.

(2.) But the two courts have also found that items 2 to 4 are included in Ext. A1, and relying on this finding, learned counsel for the plaintiffs contended, that the suit having been instituted within 12 years of the date of Ext. B 1, on which the defendants came into possession, they are entitled to recover on the strength of Ext. A 1. The defendants learned counsel contended that this being a suit in ejectment, the plaintiffs can recover only on proof of their subsisting title and that Ext. A 1 lease deed is no evidence of such title. Though according to the findings the plaintiffs have never been in possession of the properties, their learned counsel urged, that the possession of the lessor up to the date of Ext. B 1 must be deemed to be possession on their behalf. On the defendants case which has been accepted, the Mana was in possession until the date of Ext. B 1, and on the plaintiffs case, these items came into the possession of the 2nd plaintiff more than 13 years before suit, item 2 having come into the first plaintiffs possession on the date of Ext. A 1 and the Mana having been in possession of item 4 on the date of Ext. A 1. Now that according to the concurrent findings, possession had not passed to the plaintiffs pursuant to Ext. A 1, in my opinion, the lessors possession after the date of Ext. A 1 could not be treated as possession of the lessee. In Mogera Nandi v. Parameswara Udna ILR 31 Madras 51 it was held by a bench of the Madras High Court, that a suit by a lessee against the lessor to recover possession of land leased is not based on the contract to deliver possession contained in the lease deed, but on the completed title to possession acquired under the lease, and that to such a suit Art.144 of the Limitation Act is applicable. The same view has been taken in Banwari Mukunda Deb v. Bindhu Sunder Thakur ILR 35 Calcutta 346. The remedy of the lessee who has not been put in possession is to sue the lessor in ejectment. The possession of the Mana has been adverse to the plaintiffs and therefore it is not open to them to contend that they have been in possession of the property within 12 years of the date of the suit. For these reasons, I hold that the plaintiffs are not entitled to recover possession from the defendants. The Second Appeal is therefore dismissed with costs.