THOMA Vs. MUHAMMAD & ANOTHER

JUDGEMENT

(1.) THIS second appeal is by the plaintiff and arises out of a suit for declaration of title and recovery of property on basis of trespass which has been dismissed concurrently by the courts below. There are two schedules of property A and B attached to the plaint. The A schedule represents the property as a whole belonging to the plaintiff; It is a small plot measuring 2 dhannoos east to west and 2 1/2 dhannoos north to south on the southern side of the Shoranur Road in Vadakkancherry Village, with a building thereon. The B schedule is a bit of the A schedule, 3/4 dhannoos square in the south -eastern corner and is the subject of the alleged trespass by the first defendant. The plaintiff obtained the A schedule property under Ext. A dated 5 -11 -1112 from Kunjila who herself had purchased that and other property under Ext. I of 1084. Kunjila executed Ext. C l transfer in 1089 in favor of her mother of portion of her property but obtained a release of the same under Ext. C 1 on 20 -2 -1096. It is the portion covered of Ext. C and C1 that was sold to the plaintiff under Ext. A. The first defendant got a 9 cents area lying to the south of the A schedule from Kunhammu under Ext. V dated 7 -5 -1116 being already the owner of 70 cents to the east. There had been some trouble in regard to the southern boundary of the plaintiff's holding soon after his purchase under Ext. A, with his southern neighbour Kunhammu, Ext. III petition was filed by the plaintiff on 21 -1 -1113 before the second Class Magistrate, complaining against the removal of pegmarks fixed on the boundary by the mediators. The police report however showed that there was an old boundary fence separating the plaintiff's property and the matter was therefore dropped as one for the civil court, if at all. It was the plaintiff's case herein that on or about 2 -9 -1123 during the midsummer recess the 1st defendant removed the old fence and trespassed upon B schedule property and constructed a bakery taking advantage of the fact that the civil court was then closed. The plaintiff laid suit accordingly on 1 -10 -1123 as above said for declaration of title and recovery of property with mesne profits at the rate of Rs. 3 per year. The defendants 2 and 3 were impleaded as in possession under the 1st defendant. The 1st defendant denied the trespass and asserted that B schedule formed part of his own property. According to him portion of the A schedule had been acquired by the Government for widening the public road but when plaintiff obtained his sale deed he mentioned the whole area without noting the decrease and was seeking by this suit only to get the B Schedule, The courts below found against the plaintiff's title and also that he had not established possession within 12 years and so dismissed the suit.

(2.) NOW according to the data furnished by a commissioner of court, vide his report Ext. G, and plan Ext. G1 the plaintiff's present possession at the spot comprised six areas denoted by the six letters B, C, D, E, H and I. The C and D areas formed part of the road poramboke on the north and had been taken by the plaintiff on license from the Government. These according to the commissioner should be excluded in computing the area under Ext A. Similarly as regard H and I plots which were acquired by the plaintiff under different title. Thus D and E plots were alone left as those.covered by Ext. A. Ext. A gave the measurements of the property covered by it as 2 dhannoos east to west and 2 1/2 dhannoos north to south just as given in the A schedule to the plaint, that is, at the rate of 14 links to a dhannoo, 28 links east to west and 35 links north to south. The length of the D and E plots as measured at spot on the eastern and western sides however came only to 28 arid 23 links respectively. To the extent therefore, that there was a, deficiency of 7 links on the eastern side and 12 Links on the western side and portion of the 1st defendant's structure was situate therein, there must, according to the commissioner, have been a trespass by the 1st defendant The commissioner found confirmation for his finding in the fact that the 1st defendant had possession in the south and east of a total 85 cents (i.e.) 6 cents more than he was entitled to and further that the fence at the dividing boundary line J K was but three months old. The commissioner did not however mark out in Ext. G1 plan the exact extent of the trespass or even the B schedule property on the south eastern, side.

(3.) THE next question is whether the plaintiff has proved the trespass alleged or at least possession within 12 years of the suit. It seems to me this is a case where possession must be held to follow title. For, even in the case of property which admits of and according to the case of the parties has been the subject of actual exclusive occupation, the principle that possession follows title may also come up for application, though in such case the person having the title must prove that he was once in actual possession. The application of the principle is then based on the continuance of that possession. The disputed plot here was after all a building plot and had not been built upon until about one year before the commissioner's report dated 1 -6 -1124 (i.e.) about four months before suit. The commissioner's report would also show the creation of the present fence on the line J K just about three months before it, apparently by the 1st defendant. The dividing fence was however said to be an old one even in 1113, vide Ext. III. There was also the evidence furnished by the plaintiff and his witnesses as in plaintiff's prior possession. Taking these facts into consideration there is no reason to find that plaintiff was not in possession of the property to which he was entitled within 12 years of the suit. The learned Munsiff would appear to have been not quite dear on this aspect. For, while he would say that the plaintiff has not been able to establish his possession within 12 years he is also willing to say that the 1st defendant has not proved beyond doubt that the plaintiff's case is barred by limitation. The learned Judge depended upon D. W. 4 the vendor of the 1st defendant to find against the trespass, for, he was positive there was no trespass. But he was equally positive about an old dividing fence but its absence at spot at the J K line was omitted to be noticed by the Judge. I hold that the plaintiff's suit for recovery on basis of title is not barred by limitation and it is unnecessary in the circumstances to find exactly on the trespass on 2 -9 -1123 as alleged. I therefore set aside the decrees of the courts below and direct that the case will go back to the Munsiff to depute P. W. 4 and if he is not available other commissioner of court to deli neato on Ext. G1 plan the exact limit of the plaintiff's holding south of the line J K in the plan as found by me and pass fresh decree in favor of the plaintiff declaring his title to and granting recovery of the plot found to be trespassed upon. The decree to be passed by the Munsiff will also provide for the mesne profits due to the plaintiff on account of the trespass. The appellant will get one -half of his costs till now incurred from the 1st defendant. He will suffer the test the 1st defendant will suffer all his costs.