PATTERI PAKKER Vs. CHENGATIYE KOMBI AMMAD

JUDGEMENT

(1.) THIS second appeal is preferred by the first defendant in the suit against the decree and judgment of the learned District Judge of North Malabar.

(2.) THE plaintiff brought the suit for directing the first defendant and seven other defendants to vacate and surrender possession of the suit property to the plaintiff with, arrears of pattom as shown, in the plaint and future purappad calculated at the rate mentioned in the plaint on the basis of an oral entrustment mentioned in the plaint. In the alternative, if the oral entrustment is not proved, he prayed for a decree on the basis that the plaintiff and defendants are in the relationship of jenmi and tenants because the defendants are holding the properties under the plaintiff with his permission and also on the strength of the plaintiff's title thereto. The defendant-appellant contested the suit on the ground inter alia that he was not under permissive occupation of the plaintiff. On the other hand his allegation was that he was let into possession by one Pakkar who was the karnavan of the plaintiff and that the jenm stands in the name of the said Pakker. He further contended in his written statement that since the plaintiff himself had admitted in the plaint that the deceased Pakker had a right over the property, the plaintiff had no right to file the suit before getting his rights partitioned and that the suit was not maintainable. There was also an alternative plea by the defendant that even if the plaintiff acquired any right over the suit property through his wife, since the aforesaid pakker was holding and cultivating the property in jenm right for a long time denying the rights of the plaintiff's wife, the plaintiff was barred by limitation and adverse possession from filing the suit.

(3.) THE learned District Munsif found on the evidence that though the first defendant was admitted to be in possession of the property from 1918 onwards, he" was unable to believe the case put forward by the first defendant that he was granted a lease by Pakker on a purappad of Rs. 25 rent inclusive of assessment. He also held that the plaintiff's case that he put the first defendant in possession a year after Ex. A. 2 i. e. , the lease of 1945, on a rent of 270 seers of paddy and one kavn bananas, or 250 seers of paddy, one kavu of bananas and Rs. 12 was not proved. He therefore held that as the oral lease put forward by the plaintiff was not proved, the plaintiff was entitled to recover possession of the property on the strength of his title with damages for use and occupation. He gave a decree in favour of the plaintiff against the defendants. On appeal, the learned District Judge field that possession of the first defendant-could not be regarded as adverse to the plain-tiff and that the plaintiff must be regarded as being in constructive possession of the property. Therefore he opined that the plaintiff was entitled to maintain the suit and confirmed the lower court's decree.