THAZHE NELLOLI PAZHE PERINGATI ATHIRAMANKUTTI Vs. THAZHE NELLOLI PAZHEPERINGATI UPPARI ALIAS KUNHI PARAYAYI

JUDGEMENT

(1.) Mr. Sridharan strenuously contends that the judgment under appeal is wrong. The question need not be considered whether under the customary law of Malabar a permanent irredeemable kanom can be granted. According to the respondents (the tenants) such a kanom demise under the Malabar Law is valid and their contention has been accepted by both the Courts below and by Venkataramana Rao, J. It is unnecessary, as we have said, to examine the soundness of this position.

(2.) Then the question remains whether the respondents have acquired by adverse possession a permanent tenant right. This has been answered in the affirmative by the lower Courts and by the learned Judge who heard the second appeal. Ex. I of 1869 purports to create an irredeemable permanent right. Ex. A of 1895 does not supersede, as Mr. Sridharan contends, the deed of 1869, but on the contrary gives effect to a provision for renewal which that deed contains. In 1903 the then jenmi of the suit property granted a melcharath to one Mammad. He filed a suit for rent in 1906 against the predecessor in interest of the present contesting defendants. To that suit the jenmi, that is, the ancestor of the present plaintiffs was impleaded as a defendant. There the tenant put forward most unequivocally his saswatham right. The present suit was filed in 1928. From 1906 when the hostile assertion was publicly made in the suit, if not from 1869, the tenants have been in possession of the holding, asserting openly their irredeemable right. The landlord had throughout notice of the claim put forward during the entire period. That a permanent tenant right, a species of limited right, can be acquired by prescription has not been denied. Mohammad Mumtas Alt Khan V/s. Mohan Singh (1923) 45 M.L.J. 623 : L.R. 50 I.A. 202 : I.L.R. 45 All. 419 (P.C) relied on by Mr. Sridharan is clearly distinguishable. Lord Salveson, delivering the judgment of the Board, observed: We are unable to affirm as a general proposition of law that a person who is, in fact, in possession of land under a tenancy or occupancy title can, by a mere assertion in a judicial proceeding and the lapse of six or twelve years without that assertion, having been successfully challenged, obtain a title as an under- proprietor of the lands. (Page 209.)

(3.) The case here is entirely different. What is relied upon, is not a mere assertion, but possession sufficiently open and hostile, its adverse character and the nature of the right claimed, being brought home to the owner's knowledge.