1. The plaintiff's suit for declaration of his title and for permanent injunction restraining defendants 1 and. 2 from interfering with his possession of a piece of land in Hassan Taluk, was dismissed by the Munsiff, but on appeal that Judgment was reversed by the Subordinate Judge, and the defendants have come up in Second Appeal.
2. The plaintiff is defendant 1's father's brother's son. Defendant 2 is a nephew of defendant 1's husband. The plaintiff's ease is that he had been in possession and enjoyment of the suit property from 1917 openly and as of right, that he had leased the property from two years previous to suit to one Rangegowda, who had cultivated the land, and that the defendants who had no manner of right or title to the land had interfered with his possession. He gave his cause of action as June 1949.
Defendant 1 pleaded that the land had been purchased by her deceased husband on 28-6-1904, that after his death (in 1905 or 1906) she had succeeded to it and was all along in possession and enjoyment of it, that as she was very young when her husband died, her father Fayanna and after her father's death, her elder brother, one Dharanappa, who is also now dead, were looting after the property and getting it cultivated for her; and on 10-3-1909 her elder brother had executed a release deed in her favour in respect of the land, that thereafter the 1st defendant was herself getting the land cultivated for some years and through the plaintiff also as he was her father's own younger brother's son; that till 1946 he had been giving her the produce, that later he failed to do so and then applied for transfer of khatha to his own name; so she had taken away the land from the plaintiff's possession and given it for cultivation to one Krishnaiah and had since got it cultivated personally through one Manja Setty. She also pleaded that the suit land was not in possession of the plaintiff and that the suit for bare injunction was not maintainable.
In his reply, the plaintiff denied that after defendant 1's husband's death her father or her brother Had ever cultivated the land and pleaded that the release deed of 10-3-1909 was a fraudulent and nominal transaction. The defendant had never been in possession of the land and it had all along been in his possession.
3. The learned Munsiff held that the plaintiff had not made out any title to the suit property nor had he made out that he was in adverse possession continuously in his own right for over 12 years in order to perfect his title; that he had made false and inconsistent statements as regards his title and was not entitled to the relief of injunction. The learned Subordinate Judge, however, differed from the Munsiff and held that though the plaintiff had failed to establish his title, he had proved that he had been in possession adversely to defendant 1; and that as defendant 1 had not proved that he was in such possession as her manager or agent or permissively, the plaintiff had acquired title by prescription which could be protected.
The learned Subordinate Judge has thus concurred with the learned Munsiff in holding that it was clear from the evidence of the plaintiff himself that he could not claim any title to the suit schedule properties either by virtue of a gift from Dharaniah or by virtue of succession to him. He has also observed that the question of genuineness of the original of Ext. J., which is a registered release deed executed by Dharaniah so far back as 10-3-1909, was not canvassed in the pleadings though it had been specifically referred to in the written statement. In the reply it was not stated that it was not a genuine document but only that it was a fraudulent one. The learned Munsiff has expressly held Ext. J to be a genuine document. Ext. J evidences a release by Dharanappa, the elder brother of defendant 1, in favour of defendant 1. It recites that the khatha had been transferred to Dhara-nappa's father's name, that the land was till then in the releasor's possession and that he would see that the khatha also was transferred to the name of the releasee.
It is rather curious that though the plaintiff did not admit it in the pleadings he has admitted that Dharaniah was owner. In fact, he has pleaded that the land was given to him by Dharaniah as a gift Both the Courts below have rightly disbelieved that story. It is contrary to what he stated before the Revenue Authorities as in Ext. III where he has merely relied for his title on adverse possession. During the course of his evidence he has stated that his uncle payanna's son Dharanappa was messing in his house, that he the plaintiff was taking the produce, when Dharaniah was so living in his house and that the latter raised no objection. It is also admitted by him that he was on amicable terms with defendant 1 prior to suit. She had lost her husband over 40 years ago and misunderstandings between them arose only two or three years after the date of Ext. E which was in March 1945; the second defendant then got the standing crop cut and that was the reason for the trouble.
The plaintiff has not suggested any reason why he should have held and enjoyed the property adversely against his own niece who was widowed when she was very young and who had apparently no one to look after her interests after the death of her father and her brother. The brother appears to have been anxious to place her title beyond dispute as the khatha had been transferred to the name of his father apparently because he was managing the property for her. In those circumstances, it is difficult to conceive why either she or Dharaniah should have allowed the plaintiff who had no title whatever to the land to enjoy the property and take away the produce. It is much more probable, as sworn to by defendant 1 that for some years he was helping the defendant in looking after the land and was paying its kandayam and was giving her the produce.
If the property really belonged to the plaintiff, he would not have allowed the khatha to continue to remain in the name of defendant 1's father. The evidence regarding his possession also is not strong or impressive or even consistent. (After reviewing the evidence his Lordship proceeded:)
4. In a case like this where the plaintiff and defendant 1 are close relations, I think very much more and better and stronger evidence of a positive character was necessary to establish title by prescription and adverse possession in favour of the plaintiff.
Defendant 1 is an illiterate old woman of 65 years who is also deaf; for the respondents, it is urged that she has stated in the course of her lengthy cross-examination that she did not ask the plaintiff to manage the land for her; but earlier, she has stated that she asked the plaintiff to look after the land as she was a woman. P. W. 2, Hanuman the gowda who has executed a lease deed in favour of the plaintiff says that D. W. 1 and the plaintiff both used to come to the land. Sri Lakshminaranappa, learned counsel for the respondents, has urged that the evidence of D. W. 2, Krishnasetty, who has also deposed that both plaintiff and defendant 1 used to come to the land and that defendant 1 used to say that she had lost her husband and that the plaintiff was helping her, is unreliable as he had executed a lease deed in favour of the plaintiff. But he has practically only confirmed the evidence of P. W. 2
The ordinary presumption in such cases is that possession goes with title which is so clearly in defendant 1. There is not even a show of title in the plaintiff as claimed by him in the light of Exhibit IV. Better and more substantial and clearer evidence of neighbours and other villagers and tenants of continued exclusive possession of the land by plaintiff to the deprivation of any enjoyment by defendant 1 was necessary before the plaintiff could rely upon his title by prescription. As pointed out in -- 'Thangavelu Chetty v. Mangathaye Ammal', 21 Ind Cas 21 (Mad) (A),
'Acts which are alleged to create adverse possession must be scrutinised in the light of the relationship that exists between the parties who assert against each other the title by adverse possession.'
Where a female lives with her male relatives, the ordinary presumption is that they manage her property for her and do not hold it adversely. (See -- 'Inayat Husain v. Aziz Banno', 10 Ind Cas 413 (All) (B) ) Where possession has commenced lawfully, e.g. by an agreement as to the management of the property, the court would be slow to hold that it has subsequently become adverse to the rightful owner unless the evidence clearly and unequivocally establishes ouster. -- Laxmipatirao v. Venkatesh Tirmal', AIR 1916 Bom 68 (C).
'In dealing with the question of possession as between brothers and sisters, in native families, regard must be had to the conditions of life under which such families live, and the fact that in such families the management of the property of the family is by reason of the seclusion of the female members, ordinarily left in, the hands of the male members. In the case of such families slight evidence of enjoyment of income arising from the property is sufficient 'prima facie' proof of possession'. (See -- 'Inayak Husen v. Ali. Husen', 20 All 182 (D) ).
Defendant 1 belongs to the Jain community and it is not suggested that she was actually cultivating the land. She was widowed when she was quite young and it is much more probable that the plaintiff was looking after the land and giving her the produce and often times paying the kandayam on her account, rather than that he enjoyed the income of the property in assertion of a hostile title to her complete exclusion. -- 'Nanjappa Setty v. Hussain Bee', 17 Mys LJ 510 (E) has been relied on by the learned Subordinate Judge. In that case, the defendant was. in possession; it was pointed out that possession of property was presumptive. proof of ownership; it was also observed that possession is prima facie adverse and is presumed to be as of right until such presumption is rebutted by evidence. Even in that case, it is pointed out that permissive possession need not always rest on an agreement and may be a legal inference to be drawn from the circumstances of a particular case.
I think the circumstances of the present case clearly negative any intention on the part of the plaintiff to enjoy the property adversely in his own right as against defendant 1 and support the case of defendant 1 that his dealing with the land must have been with her acquiescence and for her benefit until 1948-49 when the plaintiff appears to have claimed title in himself by applying for a transfer of the khatha to his own name. In fact there is no evidence that he put forward or asserted or exercised any rights over the land at any time earlier than that and his paying kandayam is susceptible of the explanation given by defendant 1 and does not by itself prove possession. It is doubtful whether the plaintiff was in possession at all at the time of the suit and whether his suit is maintainable. But the Courts below have not gone into that question and I do not propose to do so in the view I have taken.
5. In the result, this appeal is allowed, the judgment and decree of the Subordinate Judge are set aside and those of the Munsiff restored with costs throughout.
6. Appeal allowed.