VAITHILINGA GOUNDER Vs. KUPPUSAMI GOUNDER

JUDGEMENT

(1.) THE plaintiff in O. S. No. 18 of 1957 on the file of the District Munsif, tiruthuraipoondi, is the appellant in this second appeal. The facts necessary for a consideration of this case are briefly the following. The suit property covers two plots of land--14 cents and 44 cents in extent. They belonged admittedly to the plaintiff. He was away from India between 1937 and 1956 and had asked his mother to look after the properties in his absence. The mother executed two sale deeds Exs. B-1 dated 12-7-1941 and B-2 dated 4-6-1942, in her own personal, right and conveyed the properties to defendant 5. The plaintiff filed the suit in 1957 for recovery of possession of these properties. Of course, along with the properties, alienated to defendant 5, there were some other properties which were alienated to some other defendants; but we are not concerned with those alienations to the other defendants in this second appeal, because the plaintiff has compromised with those defendants. We are concerned in this appeal only with the alienations mentioned above in 1941 and 1942 by the plaintiff's mother to defendant 5. The plaintiff alleged that he returned to India only on 20-9-1956, and he filed the suit in 1957. The main plea of defendant 5 was one of adverse possession and limitation.

(2.) THE trial Court decreed the plaintiff's suit after finding that the alienations were not valid and binding on the plaintiff. It held that, since the plaintiff did not know of alienations till he returned to India in 1956 the suit was in time. Defendant 5 appealed to the District Judge, Nagapattinam in A. S. No. 72 of 1958. The learned district Judge held that the plaintiff had failed to prove that he was in possession of the property within 12 years prior to suit. He also found that the possession of defendant 5 from the years 1941 and 1942, when the alienations took place, for 14 years and 15 years respectively upto the date of the filing of the suit was sufficient to confer on defendant 5 title by adverse possession. The decision of the trial court was reversed and the suit was dismissed. From this decision, the present appeal is filed by the plaintiff.

(3.) LEARNED counsel for the appellant, urged that it was an admitted fact that the plaintiff was in Malaya from 1937 to 1956 for a period of 19 years. He contended that the plaintiff had no means of knowing about the alienations. He also urged that the alienee derived title from the plaintiffs mother and the title so derived could not be considered to be adverse to the plaintiff, I am of opinion that these contentions are not tenable. The principles for guidance in such cases have been laid down in the Privy Council decision in Radhamoni Debi v. Collector of Khulna, ilr 27 Cal 943 (PC), and these have been followed in a later Privy Council decision in the Secretary of State v. Debendralal Khan, 66 Mad LJ 134: (AIR 1934 PC 23 ). They are that