KAYICHANKANDI AYISSA Vs. VARIYIL KUNHAIKALANTHAN AND ORS.

JUDGEMENT

(1.) THE plaintiff is the appellant. He sued for recovery of possession of a site alleging that the defendant came into possession under an oral lease of 1932. The Courts below have found that the oral lease set up by the petitioner is false but that he has title to the suit property. The learned District Munsiff also found on a consideration of the evidence adduced by both parties that neither side had established effective possession of the site till 1932 and that the site was vacant. Following the decision in Ramanathan Chettiar v. Lakshmanan Chettiar, (1930) 61 M.L.J. 224 :, I.L.R. 54 Mad.622 the learned District Munsiff decreed the suit. On appeal, however, the learned District Judge while agreeing with the District Munsiff in all the findings of fact dismissed the suit on the ground that the petitioner had failed to prove effective possession before 1932. In his view, it is not enough for the petitioner that he is the owner and that the dispossession took place in 1932, that is, within 12 years prior to the institution of the suit but that he should also prove that he had exercised acts of ownership before 1932. In support of this view he relies on the decision of the Full Bench in the Official Receiver, East Godavari v. : AIR1940Mad798 and he also thinks that the decision in Ramanathan Chettiar v. Lakshmanan Chettiar, (1930) 61 M.L.J. 224 :, I.L.R. 54Mad.622 was overruled by the Full Bench.

(2.) IN my opinion, the learned Judge is wrong in his interpretation of the decision of the Full Bench. ' The decision in Ramanathan Chettiar v. Lakshmanan Chettiar, (1930) 61 M.L.J. 224 :, I.L.R. 54Mad.622 recognises as does the Full Bench, that a plaintiff suing in ejectment on the strength of his title and dispossession should establish not only title but also possession within 12 years prior to suit and follows the very decision in Mohima Chunder Mozoomdar v. which is also referred to and followed in the Full Bench. If once the petitioner establishes that the date of dispossession or discontinuance of possession is within 12 years from the date of suit as required by Article 142 of the Limitation Act, in order to establish prior possession within the meaning of the first column of that article it is permissible, according to the decision in Ramanathan Chettiar v. Lakshmanan Chettiar, (1930) 61 M.L.J. 224 :, I.L.R. 54Mad.622 having regard to the nature of the property such as vacant site or land or haying regard to the absence of evidence of effective possession or conflicting evidence as to possession before the date of dis -possession, to invoke the aid of the presumption of possession following title. This is merely a mode of proving prior possession as required by Article 142 and the decision of the Full Bench in Official Receiver, East Godavari v. : AIR1940Mad798 . In my view, the Full Bench does not purport to deal with the mode or manner of establishing possession and it only lays down the requisites to be proved in a suit falling under Article 142. In the decision in Ramanathan Chettiar v. Lakshmanan Chettiar, (1930) 61 M.L.J. 224 :, I.L.R. 54 Mad.622 it is stated,

(3.) FOR these reasons, I am unable to agree with the decision of the learned District Judge and his decision is therefore reversed and that of the District Munsiff is restored with costs here and in the Court below.