SECRETARY OF STATE Vs. MUTHUKUMARA PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-respondent for a declaration of his title to a plot of land marked A in the plan which forms the middle portion measuring about 20 cents in the plot marked B C D E. F. Plaintiff's case is that he and his coparceners and their ancestors have been in absolute possession and enjoyment of this plot for over 65 years and have acquired a title to the same by adverse possession and that the Government had no right to institute eviction proceedings against him. He has also sought for an injunction restraining the defendant from interfering with his peaceful enjoyment of the suit site. The case of the defendant is that the suit site forms part of natham poramboke which belongs to the Government and that the plaintiff has not acquired a valid title to the suit site by adverse possession for 60 years as against the Government. The lower appellate Court, after a due consideration of the oral and documentary evidence in this case, has found that the plaintiff and his ancestors have been in continuous possession and enjoyment of the suit site for over 60 years and that the plaintiff has acquired an indefeasible right to the same.

(2.) The Subordinate Judge has discussed the oral evidence in paragraph 4 of his judgment and taken into consideration the existence of a shed on the suit site for a very long time and also the fact of the suit site having been enclosed by a. kalli fence all round and stated in paragraph 5 of his judgment that he had not the slightest hesitation in coming to the conclusion that the evidence of the plaintiff's witnesses, supported as it is by the evidence of the defendant's first witness, proved the possession of the plaintiff and his ancestors for more than 60 years. P. Ws. 2, 3 and 4 are men of advanced age who are competent to speak to the long enjoyment, That the shed on the suit site has been in existence for 60 years and more, and that the site has been enclosed all round by a kalli fence during this long period, is spoken to by P. W. 3. In that shed cattle used to be tethered and hay would be stored in it. It is admitted by D. W, 1 also that the thatched shed on the suit land was in existence when he became karnam in 1896 and that it continued to exist down to 1910. He says that the plaintiff's father and another were enjoying the shed. As regards the nature of the structure he says that the shed was supported on pucca beams and covered with varagu straw. In the survey plan of 1857 (Ex. D.) the land in question was numbered as 857 and the existence of a shed on it was also shown. In the account of 1858 (Ex. C) Sabapathi Pillai is mentioned as the person in occupation of the same. The plaintmentioned land with the shed thereon was treated as one of the items of family properties by the members of the plaintiff's family and divided into three shares as per the registered deed of 1884 (Ex. A). The evidence both oral and documentary justifies the inference that the plaintiff and his coparceners as well as their ancestors have been in uninterrupted possession and enjoyment of the suit site with the shed thereon for over 60 years. I have no hesitation in agreeing with the finding of the lower appellate Court on this point.

(3.) It is contended by the learned Government Pleader that the suit land forming part of natham poramboke as shown by unimpeachable documentary evidence, it should be deemed to be the property of the Government and the onus of proving that the acts of enjoyment are such as would constitute adverse possession in law, and that such possession has lasted for over 60 years before suit lies on the plaintiff in order to get the declaration sought for by him. As I have stated above, the plaintiff has proved continuous possession and enjoyment for over 60 years. The question now for consideration is whether the possession would amount in law to adverse possession against the Government. Reliance is placed by the learned Government Pleader on the decision in Taluk Board, Dindigul V/s. Venkatramier A. I. R. 1924 Mad. 197 as also the decision in Framji Cursetji V/s. Goculdas Madhowji [1892] 16 Bom. 338 and Chokkalinga Naicken V/s. Muthusami Naicken [1898] 21 Mad. 53 In the first case the kinds of user proved to have been resorted to by the villagers in a portion of the village site or natham poramboke were found to be too fugitive and patently permissive and could not be deemed to constitute adverse possession or enjoyment as of right as against the Government. In the absence of evidence of open and continuous enjoyment as of right, it was held that no right by prescription could be acquired. In Framji Cursetji V/s. Goculdas Madhowji [1892] 16 Bom. 338 a small piece of land which was not of use to the owner was however made use of by his neighbour in various ways without objection for more than 12 years. The question was whether such user was sufficient to constitute adverse possession. It was sought to be proved in that case that some temporary structures such as a privy and a cattle-shed, etc. were also put up on the site in order to show the nature of the possession, but the trial Judge, who heard the evidence and saw the witnesses, disbelieved the story as to the existence of these various structures. This is clear from the observations of Sir Charles Sargent, C. J., at p. 341.