MURUGESA MUDALI Vs. SYED ALLI

JUDGEMENT

(1.) In this case the Subordinate Judge has found that the lease of the suit land Ex. B. is genuine. He also finds that the plaintiff leased the land to defendants 4 and 5 and father of defendants 3 to 6. A portion of the land was subsequently sold in 1902 to defendant 2 and the Subordinate Judge has found that from that date defendant 2's possession was adverse and, therefore, the plaintiff's suit is time barred in respect of that portion. He does not give any reason for holding that defendant 2 was in adverse possession and it is clear that if the sale to defendant 2 was effected while the tenancy under Ex. B was still subsisting, defendant 2's possession would not be adverse until the tenancy was put an end to. The Subordinate Judge has not considered the question of what happened to the lease Ex. B, which purports to be a tenancy-at-will and would go on from year to year until put an end to.

(2.) Secondly, in the absence of a finding that the tenancy had been pat an end to or was not subsisting on the date of the sale to defendant 2, defendants 2's possession would not be adverse to the plaintiff, the landowner. As authority for this proposition I would refer to Davis V/s. Kazee Abdool Hamed 8 W. R. 55 Baikuntha Nath Sarma V/s. Chaitanya Charan Chaudhury [1920] 57 I. C. 991 Uday Kumar Das V/s. Katyani Debi A. I. R. 1922 Cal. 87 and a recent decision of this Court D. Mohideen Rowther V/s. Jayarama Iyer A. I. R. 1921 Mad. 42 The finding, therefore, of adverse possession cannot be accepted without a fresh finding as to whether the tenancy under Ex. B. was still subsisting on the date of the sale to defendant 2. No specific plea was taken that the tenancy had been put an end to, but the District Munsif had discussed the evidence as to the possession of the suit plot from 1885 to 1902 and appears to come to the conclusion that the lease had ceased to exist. This evidence is not mentioned by the Subordinate Judge, and I must ask him to consider all the evidence and come to a finding on the above point.

(3.) Objection is also taken to his finding in para. 4 of his judgment that defendant 2 had held possession of a plot of 16 yards by 14 yards in plot A adversely to the plaintiff for more than 12 years. In coming to this conclusion the Subordinate Judge finds that the title to this piece of land was never in the plaintiff, although it was included in his sale-deed, and he relies for this finding on Ex. 7 which, he says, clearly shows kamalsahibs right and the sale by him to Periathambi. No such recital appears in Ex. 7 and, secondly, that document cannot be relied on as proving the point. Again he states that Ex. 7 describes the plot as West of Kurnool Road and the house of defendant 2.