RANGASWAMI NAICKER Vs. VENKATACHALA NAICKER

JUDGEMENT

(1.) I am not prepared to re-appreciate the evidence regarding the effect of the delivery under Ex. E. The Subordinate Judge has appreciated it from his point of view and I am not prepared to re-open his finding on a question of fact merely because the evidence of direct witnesses to what occurred some 15 years before they gave the evidence is of an uncertain nature. I must take it then that the delivery under Ex. E, to plain tiff on 17 September, 1907, was not sham or symbolical but that he came into possession on that date and ousted those already there, whether these were 1 defendant or defendants Nos. 2 and 3. The only question then remaining, as the I Subordinate Judge states, was whether defendants Nos. 2 and 3 had proved possession within 12 years of suit. As they were dispossessed on 17 September, 1907, if they were in possession before that date, they could not establish adverse possession for 12 years prior to suit, since the suit was filed on 15 September, 1919. It does not matter that the Subordinate Judge has not considered whether the oral lease pleaded by plaintiff in favour of defendants Nos. 2 and 3 in 1909 is true or not. Plaintiff's claim of title was founded on the Court-auction purchase and delivery on 17 September, 1907, and not on the oral lease and the suit was fought on that ground.

(2.) I see no reason to interfere and dismiss this second appeal with costs.