VENKATASAMI NAICK Vs. KALI SAMATAN

JUDGEMENT

(1.) PLAINTIFFS sue in ejectment claiming title by ancestral right or by adverse possession for over twelve years. Both the lower Courts have found that the plaintiffs title is not proved, but the lower Appellate Court has given the plaintiffs a decree on the Strength of their possessory title and dispossession by a trespasser. No such claim was set up in the plaint nor in the first memorandum of appeal and we do not think that such a claim should be allowed in this case, when the defendants have not had an opportunity of meeting it, for in a suit based upon possessory title a defendant may well have grounds for opposing the claim, which would be of no avail in a suit brought by the real owner. In this view we follow the decision in Maikal Servai v. Thambuswami Servai 25 Ind. Cas. 934 : (1914) M.W.N. 784 : 1 L.W. 853 and accordingly allow the appeal and dismiss the plaintiffs suit with costs throughout.