KAYICHANKANDI AYISSA Vs. VARIYIL KUNHAIKALANTHAN

JUDGEMENT

(1.) The plaintiff is the appellant. He sued for recovery of possession of a site alleging that the defendant came into possession under an oral lease of 1932. The Courts below have found that the oral lease set up by the petitioner is false but that he has title to the suit property. The learned District Munsiff also found on a consideration of the evidence adduced by both parties that neither side had established effective possession of the site till 1932 and that the site was vacant. Following the decision in Ramanathan Chettiar V/s. Lakshmanan Chettiar (1930) 61 M.L.J. 224 : I.L.R. 54Mad.622 the learned District Munsiff decreed the suit. On appeal, however, the learned District Judge while agreeing with the District Munsiff in all the findings of fact dismissed the suit on the ground that the petitioner had failed to prove effective possession before 1932. In his view, it is not enough for the petitioner that he is the owner and that the dispossession took place in 1932, that is, within 12 years prior to the institution of the suit but that he should also prove that he had exercised acts of ownership before 1932. In support of this view he relies on the decision of the Full Bench in the Official Receiver, East Godavari v. Govindaraju and he also thinks that the decision in Ramanathan Chettiar v. Lakshmanan Chettiar (1930) 61 M.L.J. 224 : I.L.R. 54Mad.622 was overruled by the Full Bench.

(2.) In my opinion, the learned Judge is wrong in his interpretation of the decision of the Full Bench. The decision in Ramanathan Chettiar V/s. Lakshmanan Chettiar (1930) 61 M.L.J. 224 : I.L.R. 54Mad.622 recognises as does the Full Bench, that a plaintiff suing in ejectment on the strength of his title and dispossession should establish not only title but also possession within 12 years prior to suit and follows the very decision in Mohima Chunder Mozoomdar V/s. Mohesh Chunder Neoghi (1888) L.R. 16 I.A. 23 : I.L.R. 16 Cal. 734 (P.C.) which is also referred to and followed in the Full Bench. If once the petitioner establishes that the date of dispossession or discontinuance of possession is within 12 years from the date of suit as required by Art. 142 of the Limitation Act, in order to establish prior possession within the meaning of the first column of that article it is permissible, according to the decision in Ramanathan Chettiar V/s. Lakshmanan Chettiar (1930) 61 M.L.J. 224 : I.L.R. 54Mad.622 having regard to the nature of the property such as vacant site or land or haying regard to the absence of evidence of effective possession or conflicting evidence as to possession before the date of dis- possession, to invoke the aid of the presumption of possession following title. This is merely a mode of proving prior possession as required by Art. 142 and the decision of the Full Bench in Official Receiver, East Godavari V/s. Govindaraju . In my view, the Full Bench does not purport to deal with the mode or manner of establishing possession and it only lays down the requisites to be proved in a suit falling under Art. 142. In the decision in Ramanathan Chettiar V/s. Lakshmanan Chettiar (1930) 61 M.L.J. 224 : I.L.R. 54Mad.622 it is stated, But the possession to be proved is such possession, as the property is capable of or such as has been the normal method of user. When each party who claims possession is unable to prove any acts of effective possession and therefore the normal method of possession is not referable to any such act, possession must follow title, since the defendants are no more able than the plaintiff to claim effective possession for 12 years before suit. Possession in such circumstances is with the party holding title.

(3.) This view of the law is based on the decision of the Privy Council in Runjeet Ram Panday V/s. Goburdhun Ram Pandqy (1873) 20 W.R. (Civil) 25. If the law were otherwise and the owner of land which is either vacant or is of no immediate use to him refrains from exercising acts of ownership he would lose the property even though the dispossession was within 12 years from the date of the institution of the suit. He, however, should not allow the person who trespasses upon the property to continue in possession for more than 12 years from the date of trespass. Thus a person who purchased a vacant site in 1920 is entitled to keep it vacant without putting it to any use but if another person dispossesses him in 1936 the owner should institute his suit before 12 years from 1936 expire and is entitled to invoke the presumption of possession being with owner during the period from 1920 to 1936. So far as I could see the Full Bench does not stand in the way and does not disentitle the owner from relying on such presumptive proof. The view of the learned District Judge that the petitioner must prove effective possession by adducing evidence of acts of possession as owner is erroneous and the decision of the Full Bench has not in any way altered the law as laid down in Ramanathan Chettiar V/s. Lakshmanan Chettiar (1930) 61 M.L.J. 224: I.L.R. 54 Mad. 622 at 424 which was also followed in other cases.