MAIKAL SERVAI Vs. THAMBUSWAMI SERVAI

JUDGEMENT

(1.) Plaintiff has based his suit on title by inheritance and as it is found that he and 1st defendant are only illegitimate sons of Arulappa Servai, the original owner, he is no heir at all.

(2.) The Subordinate Judge has, however, given him a decree on the strength of the principle laid down in Asher v. Whittock 1 Q.B. 1 : 35 L.J.Q.B. 17 : 11 Jur. (N.S.) 925 : 13 L.T. 254 : 14 W.R. 26 and followed in Sundar v. Parbati 12 A. 51 (P.C.) : 16 I.A. 186 : 5 Sar. P.C.J. 448 and Narayana, How v. Dharmaehar 26 M. 514 : 13 M.L.J. 146 that mere possession of property gives an interest which can be enforced in a suit against a trespasser. No doubt a suit is maintainable on such-a basis; but if plaintiff seeks to rely on it, it should be clearly set up so that the contesting defendants may know what they have to meet. There is no indication of such a claim in the plaint, which, as already stated, bases the suit on title by inheritance and nothing else; and the contention appears to have been first set up in the course of the hearing in the lower Appellate Court. We consider, following Somasundarani Chetty v. Vadivelu Pillai 31 M. 531 : 4 M.L.T. 344 and Shiro Kumari Debi v. Govind Shaw Tanti 2 C. 418, that plaintiff should not have been given a decree on the basis, of a claim not set up in the plaint or raised in the issues or even set up in the 1st appeal petition.

(3.) We must set aside the decree of the Subordinate Judge and dismiss the suit with costs throughout.