RAMASWAMI THEVAN Vs. ALAGA PILLAI

JUDGEMENT

(1.) The plaintiff in this case sued to recover possession of a manikat from purakkudi tenants after removing the superstructure thereon, the allegation being that the first defendant's father, and the other defendants were let into the land on condition of doing service in accordance with the Tanjore custom of purakkudi service; that, when the plaintiff called on the defendants in 1913 to quit the land because they refused to do service, the defendants pleaded title from Government to whom they had executed a muchilika in respect of the suit site.

(2.) The first Court held that, since the cessation of service was long prior to twelve years, before the plaintiff's suit, the plaintiff's title to the suit site had become extinguished by force of Section 28 of the Limitation Act. The Appellate Court held that it was not open to the defendants to plead justertii in Government until they had determined the existing tenancy by surrendering possession or otherwise and that, therefore, the defendants were not entitled to question the plaintiff's title; and decreed the suit in favour of the plaintiff. The defendants apppeal.

(3.) The main question argued before me was whether the tenancy under plaintiff has not already been determined, or whether the defendant is not in law to be allowed to set up his muchilika from Government being estopped by force of Section 116 of the Indian Evidence Act from denying the plaintiff's title. The plaintiffs land is Survey No. 498, which so far as appears, always has been registered as tope porambohe. Prima facie then, the paramount title is with Government. Plaintiff alleges, however, on the strength of a delivery account, Exhibit A which is said to relate to the suit land that the suit land was in 1886 not porambohe hub punja. No doubt in Exhibit A the land is styled punja. On the other hand Exhibit C. series is a series of B. memos from 1901 to 1905 whereunder plaintiff has been charged penal assessment for unauthorised cultivation of Survey No. 498 Tope Poramboke. Plaintiff explains the entry of the description tope poramboke in Exhibit C. series by saying that originally the land was punja, that it was handed over to Government at some time unknown for purposes of growing trees and that Government took it over, grew trees thereon and registered the land as tope poramboke.