S SUBBARAYA MUDALIAR Vs. APPATHURAI SAMBAN

JUDGEMENT

(1.) These two second appeals arise out of two suits instituted in the Court of the District Munsif of Shiyali being O. S. Nos. 204 and 205 of 1933. There was a third suit O. S. No. 206 of 1933 tried along with them raising identical questions. The suits were instituted by the appellant to eject the several defendants in occupation of portions of a piece of dry land part of Survey No. 27 in the village of Kondal, Shiyali Taluk. The patta for this land has all along stood in the name of the plaintiff and his predecessors-in-title. The plaintiff purchased roughly two-thirds of the lands in the village of Kondal and among the items purchased was an extent of 32 cents in Survey NO. 27. The defendants in O. S. No. 204 of 1933 are in possession of 7 out of 32 cents purchased by the plaintiff, while the defendants in O. S. No. 205 of 1933 are in possession of 6 cents thereout. It is unnecessary to consider the special facts of O. S. NO. 206 of 1933, which is not now before me as it would appear that a second appeal was filed but was dismissed in the admission stage. The purchase by the plaintiff was made under Ex. L dated 11 May 1933 executed by the previous owners, Somasundaram Pillai and Subramaniyam Pillai in favour of the plaintiff. In a partition in the family of the vendors, evidenced by EX. D dated 17 June 1923 Survey No. 27 was treated as family property and was the subject-matter of division. These two documents coupled with the fact that the patta has all along stood in the name of the plaintiff and his predecessors-in-title and they it was that were paying kist due to Government constitute prima facie evidence of the title to the land in dispute being in the plaintiff.

(2.) The case of the plaintiff is that the defendants in the several suits and their ancestors have been pannai cultivators under the proprietors of the village, and that they were allowed to reside in the suit sites and do cultivation work for the proprietors. The plaintiff pleaded the well-known custom of the Tanjore district, to allot sites for residence for purakkudis, who do cultivation work under the mirasdars of the Tanjore District and alleged that it is an incident of the custom that the cultivating tenant should surrender the site in case he ceased to work for or cultivate the land of the mirasdar. The plaintiff then referred to the defendants having ceased to do work for the plaintiff from 1 August 1933 and prayed for a decree for possession against the defendants. In O. S. No. 204 of 1933 there were two defendants, Appathurai Samban and Rethinam Samban, father and son respectively, and they are the respondents in S. A. No. 430 of 1937. In O. S. No. 205 of 1933 also there were two defendants, namely, Kuppan Samban and Perumal, father and son again, the respondents in S. A. No. 432 of 1937. As I have said, the case of the plaintiff is that these defendants were in occupation of the respective sites in pursuance of the custom and that in view of the refusal to work for the plaintiff, they are liable to be ejected. The defendants filed written statements denying the title of the plaintiffs, and denying that they and their ancestors were pannai servants or purakkudi tenants under the plaintiff or his predecessors-in-title, nor ever rendered any sort of service to them. They denied the custom pleaded by the plaintiff. They denied that the plaintiff or his predecessors-in-title were in possession of the suit sites within twelve years of the institution of the suit and pleaded that they had perfected a title to them by adverse possession. It is to be observed that the defendants did not plead that they were the owners of the land except to the extent that title was claimed by operation of the rules of the Limitation Act. There were a number of issues framed in the suit, but the only important ones were issues 1 to 4 which were as follows: (1) Whether the plaintiff is entitled to the suit property ? (2) Whether the defendants or their ancestors were cultivating tenants under the plaintiff and his predeeessors-in-title ? (3) Whether the alleged Tanjore custom is true and valid ? (4) Whether the suit is in time ?

(3.) The learned District Munsif considered issues 1 to 3 together and held on a consideration of the oral and documentary evidence that defendants were cultivating the land of the plaintiff's predecessors-in-title and doing service under them sometimes as Pannai servants and sometimes as Purakkudi tenants, found the title to the suit property in the plaintiff and upheld the Tanjore custom pleaded by him and supported by the witnesses called on his behalf. On issue 4, he recorded the finding that the suit is in time, as the defendants denied doing service only from 1 August 1933. As a result of his findings, the learned District Munsif gave a decree to the plaintiff for possession of the properties in dispute after removal of the superstructure thereon put up by the defendants. The defendants in the three suits preferred appeals to the District Judge, East Tanjore. The appeals were heard together and disposed of in one common judgment. The District Judge reversed the decrees of the District Munsif and dismissed the suits. He considered the appeals under three heads: (1) Whether the plaintiff has a valid and subsisting title to the suit property ? (2) Whether the defendants or their ancestors were let into possession of the suit sites on the understanding alleged by the plaintiff ? (3) Whether the suit is in time ?