VAIYAPURI CHETTIAR Vs. SUBRAMANIA CHETTIAR

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff for the recovery of his half-share of the suit property. The plaintiff's father and defendant 1 were brothers. Between them, there was a partition of the family properties in the year 1893. This partition included the suit property also but it is the common case of both the parties that this property was not divided but was allowed to remain in the possession of defendant 1. The plaintiff's case is that defendant 1 was allowed to remain in possession for the purposes of management so that he may give over the produce on the property to the plaintiff's sister. The defendant set up a special case that the property was given over to his possession as it was understood that he should have it for himself in case the. title to another item of property given to him under the partition-deed was found defective; he also pleaded adverse possession in support of his claim. Thus, the three questions for consideration were: (1) Whether the plaintiff's explanation of defendant 1's possession is true? (2) Whether the defendant's explanation of his possession is true? (3) Is the plaintiff's suit barred by adverse possession?

(2.) On all these issues, the District Munsif found in favour on the plaintiff and gave him a decree as prayed for in the plaint. In appeal, only two questions seem to have been argued before the learned Subordinate Judge, these being: Is the permissive possession alleged by the plaintiff true? Has defendant 1 been in adverse possession for over 12 years before suit? On both the points, the learned Subordinate Judge found against the plaintiff and as a result, his suit was dismissed.

(3.) In second appeal, Mr. Sitarama Rao appearing for the plaintiff-appellant argues that accepting the Subordinate Judge's finding that the plaintiff's case of the permissive possession alleged by him in the plaint is not true, still the learned Judge's conclusion that defendant 1 has been in adverse possession for over 12 years should not be accepted inasmuch as that conclusion has been arrived at by the learned Judge by throwing the burden of proving adverse possession on the plaintiff. This point is dealt with by the learned Judge in para. 18 of his Judgment. He says: Possession by defendant 1 since the portion of 1893 has bean proved. Even in the plaint such possession from within one year of the partition is admitted. The possession by defendant is adverse to the share of the plaintiff's father unless that possession is traced to an origin consistent with the recognition of the plaintiff's father's title. On issue 1 I have found that the plaintiff has failed to prove such a case.