GOVINDASAMI PILLAI Vs. PETHAPKRUMAL CHETTT, DEAD,

JUDGEMENT

(1.) The facts are somewhat complicated, but when once they are apprehended it appears to be clear that there is no finding on the point now in dispute. The suit was for rent of certain lands for the years 1910 1911,1911-1912, and 1912-1913. The defendant s plea was that he was dispossessed of the land by one Ramasami Mooppan who was the real owner and was not, therefore, hound to pay rent after the date of his dispossession to the plaintiff, who is the assignee of his landlord Subramania Josier. As regards the first two years there is a concurrent finding of fact by both the lower Courts that the defendant was not evicted by any body and we accept that finding. As regards the third year which began in March 1912, and ended with March 1913, it is said that evidence clearly proved eviction at least in May 1912 by Ramasami Mooppan. The first Court found it was not proved by the defendant that there was any eviction. In appeal the lower Appellate Court does not find definitely one way or the other. A certain amount of confusion has arisen owing to the history of the title to this property. The lands originally be- longed to a Mahratta gentleman, who mortgaged them with possession to Chithambaram Chatty or to a predecessor of his in title. While Chithambaram was in possession as mortgagee, a suit was instituted against him for money by one Srinivasa Aiyangar who got the mortgage right attached before judgment, which he brought to sale in execution after obtaining a decree and purchased it himself. The attachment appears to have been made in 1904. The mortgagee Chithambaram Chetty leased the lands to one Alagiri, who in his turn leased to Subramania Josier, the landlord of the defendant. After the lease to Alagiri Chithambaram appears to have sold the othi right to Kandasami Mooppan. Ramasami Mooppan had become the owner of the equity of redemption of the Mahratta gentleman and appears to have redeemed Kandaswami, the assignee of the mortgage, and appears to have claimed actual possession of the property from the lessees of Chithambaram on the ground that after redemption by him, there was no subsisting title in the mortgagee Chithambaram to sustain any lease by him. On this claim, Ramaswami Mooppan appears to have obstructed the defendant in cultivating the land and on his complaint his landlord Subramania Josier applied to a Magistrate under Section 145 of the Criminal Procedure Code to protect the possession of his lessee, the defendant. This petition was, however, dismissed in August 1912 on the ground that the property had been delivered to Srinivasa Aiyangar who took certain proceedings in execution as purchaser against Chithambaram, the mortgagee. Ramasami Mooppao claimed the land against Srinivasa Aiyangar, the purchaser. The merits of that claim it is unnecessary to specify now. Ramasami Mooppan s claim was disallowed and he filed a suit to establish his claim. In the meantime the execution-purchaser Srinivasa Aiyangar applied to be placed in possession of the lands as purchaser of the mortgage interest of Chithambaram. That application appears to have been opposed by Subramania Josier, the landlord of the defendant, but Srinivasa Aiyangar was according to the language of the receipt placed in possession in August 1912 (Exhibit V). Whether he was actually placed in physical possession of the land, who was then in possession, whether it was the defendant or Ramasami Mooppan who is said to have obstructed the defendant and taken possession in May 1912 is not found. The Pleader for the appellant contends that the defendant was evicted by Ramasami Mooppan at any rate by the end of May 1912 and that Ramasami Mooppan was the real owner as his title was established against Srinivasa Aiyangar, the purchaser, and if Srinivasa Aiyangar did get possession in August 1912 he got it from Ramasami Mooppan and so far as he the defendant was concerned, when once he was evicted by the real owner, (that is) Ramasami Mooppan, it did not matter to him, whether the real owner was subsequently ejected or not. The respondent s Pleader contends that the defendant was not ejected at all, and if he was ejected by Ramasami Mooppan, Ramasami must be considered to be a trespasser as he had agreed with Subramania Josier to allow him to continue in possession as lessee during the whole period of his lease. Whether this is so or not is again not found. Further it is not found whether as a matter of fact Srinivasa Aiyangar dispossessed any body when he is said to have obtained possession under Exhibit V. It is said he obtained symbolical possession. We must point out that symbolical possession is given only in cases where the party in actual possession is entitled to remain in such possession as in cases of delivery under Order XXI, Rule 96, of the Code of Civil Procedure and should not be confounded with cases where a party is entitled to actual possession, but obtains only what is called a paper delivery, (that is), where he gets no possession at all. It is clear from the above statements of facts that there must be a finding on the following points: (1) Whether the defendant was actually ousted from the lands in May 1912 by Ramasami Mooppan. (2) If he was, whether Ramasami Mooppan had a title paramount to that of Subramania Josier, the landlord of the defendant. The effect of the alleged agreement Exhibit C must also be considered. (3) If the defendant was not evicted by Ramasami Mooppan, was he evicted in August 1912 by Srinvasa Aiyangar by reason of the delivery evidenced by the receipt Exhibit V? And if he was so evicted, had Srinivasa Aiyangar a paramount title? (4) Did the defendant remain in possession without being evicted by anybody during the year 1912--1913?

(2.) The finding must be on the evidence on the record, except as to issue (2) on which any adjudication between Srinivasa Aiyangar and Ramasami Mooppan may be admitted. Finding is to be returned before the 17th July 1917 and seven days are allowed for objections.

(3.) In compliance with the order contained in the above judgment, the Subordinate Judge of Tanjore submitted the following FINDINGS. 1. The four issues remitted to this Court for finding are: I. Whether the defendant was actually ousted from the lands in May 1912 by Ramaswami Mooppan? II. If he was, whether Ramaswami Mooppan had a title paramount to that of Subramania Josier, the landlord of the defendant? III. If the defendant was not evicted by Ramasami Mooppan, was he evicted in August 1912 by Srinivasa Aiyangar by reason of the delivery evidenced by the receipt Exhibit V? and if he was so evicted, had Srinivasa Aiyangar a paramount title? IV. Did the defendant remain in possession without being evicted by any body daring the year 1912-1913? 2. The findings were directed to be on the evidence on record, except as to issue No. 2 in which any adjudication between Srinivasa Aiyangar and Ramaswami Mooppan was allowed to be received. The defendant produced a number of documents under that provision and Exhibits X to XIII were filed as they alone related to adjudication between Srinivasa Aiyangar and Ramaswami Mooppan. 3. Chidambara Chetti leased the lands while he was in possession as usufructuary mortgagee to Alagiri Chetti in 1905 and the latter is said to have leased the same to Subramania Josier in 1907. Subramania Josier leased to the defendant s father Perumilu Pillai for 3 years under Exhibit A, dated 2nd March 1910. Although the documents relating to the leases to Alagiri and Josier are not filed, it appears that the former obtained a lease for 10 years from 1905 and that the latter obtained his lease for 8 years under a registered deed, dated 10th August 1907 (vide, Exhibits IV and C). The lease would, therefor. , expire in April 1915.