SUBBARAYA NAICKER Vs. VENKATESA NAICKER

JUDGEMENT

(1.) Having heard the arguments at some length in this appeal, a difficulty presents itself by reason of the omission of the learned District Judge, to give a definite finding on the question involved in issues 2 and 7 viz., "whether the plaintiff was in possession within 12 years prior to suit," and "whether the suit is barred by limitation." There are some observations in the judgment of the District Judge indicating his doubt as to plaintiff's possession and enjoyment. But it is not easy to accept the same as a definite finding of fact, especially when he-was disagreeing with finding of the first Court, that the sale in plaintiff's favour under Ex. A was real and not fraudulent. It is contended by the learned advocate for the appellants, that even if the District Judge's view based on the doctrine of "in pari delioto" as regards the sale deed Ex. A} should prevail, and the defendants am held to be debarred from attacking its validity, it is still open to them to attack the plaintiff's claim on the ground of limitation. In their written statement they have denied the plaintiff's possession since the date of Ex. A and set up the possession of the vendor and; his heirs all along, and pleaded the bar of limitation. The word "adverse" is not prefixed to possession, but in ground No. 9 of the appeal memo in the lower Court it is stated that that enjoyment was adverse and in their own right. A definite-finding on this point has become necessary. The issue will be in the following form: Whether the plaintiff had been in possession within 12 years before suit, or whether the vendor and his heirs have been in possession and enjoyment for over 12 years after the date of Ex. A, and consequently plaintiff's title, if any, is lost by their adverse possession.

(2.) The appeal is remitted to the lower appellate Court for a finding on the above issue to be submitted within two months from the date of receipt of record in that Court. Fresh evidence is allowed to be adduced. Parties will be allowed to file their objections to the said finding within ten days after the notice of receipt of the said finding is put up on the notice board of the High Court. Finding, J.

(3.) I am directed by the High Court to submit my finding on the following issue, viz., whether the plaintiff had been in possession within 12 years before suit or whether the vendor and his heirs have been in possession and enjoyment for over 12 years after the date of Ex. A, and consequently plaintiffs-title, if any, is lost by their adverse possession. Taking therefore the entire evidence and all the probabilities into consideration, I am satisfied that the plaintiff has proved that he has been in possession of the plaint lands within 12 years before suit and that the defendants have not succeeded in proving that the plaintiff's vendor and his heirs have been in possession and enjoyment for over 12 years after the date of the sale Ex. A and that consequently the plaintiff's title, if any, is lost by their adverse possession. I therefore record a finding in favour of the plaintiff on the issue remitted. (On receiving the finding his Lordship delivered the following)