1. In this case it has been found that the jenmi title to the plaint land was in the plaintiffs, and that in 1863, one Koru obtained from Government a cowle to cultivate the land, and that he and his assignees, defendants 5 to 8, have been in possession ever since. It was alleged that Koru originally got possession of the land under an oral lease from the 1st plaintiff in 1861-62, but the Subordinate Judge did not decide the question holding that even if Koru took possession of the land on the strength of the Government cowle without reference to the jenmi, such possession must be regarded as not hostile to the jenmi who was, therefore, entitled to recover at any time on the strength of his title. The Subordinate Judge, therefore, decreed that plaintiffs should recover possession on payment of compensation for improvements.
2. Against this decree the defendants 5 to 8 appeal on the ground that the plaintiff's suit is barred by limitation. We have no doubt but that this is so, unless the letting to Koru in 1861-62, alleged by the plaintiffs is proved. The effect of the grant of a cowle quoad the jenmi has often formed the subject of judicial decision (Wigram's Malabar Law and Custom, 137); and is well laid down in the case of the Secretary of State v. Astamurti I.L.R. 13 M. 118 . It is expressly provided in the cowle that the jenmi's rights are not affected by the grant of the cowle, and it is usual for the holder of the cowle to settle with the jenmi at the same time when he receives the cowle from Government. The cowle merely insures a favorable assessment of the Government dues on cultivation. Should the holder of the cowle fail to settle with the jenmi, he may be evicted. Should he, however, be left in possession for more than twelve years without any recognition of the jenmi right, he would like any other trespasser acquire a valid title by prescription.
3. In the present case, there was no recognition of the 1st plaintiff's right as jenmi. The learned pleader for the respondents contends that Exhibits 18 and 19 only convey Koru's right to improvement, and that this fact, together with the attornment by Koru to the 12th defendant as jenmi in 1880, indicate that Koru did not claim the land as owner, and argues that, unless he claimed to hold the land as owner, the plaintiff's right could not become barred. He relies on a passage in Siva Subrahmania v. Secretary of State for India to the effect that possession will not generate a prescriptive right, unless it is possession with the intention to hold exclusively and as owner I.L.R. 9 M. 302-3. This argument is untenable. The language must be understood in the light of the facts and arguments in that case, and when so understood, it has no reference to the present case. There the question was, whether certain acts were evidence of an ownership, or merely of an easement In the present case there is no question of easement at all. Moreover, there is nothing in Exhibits 18 or 19 or 1 to indicate that Koru at any time recognized the 1st plaintiff as jenmi. Exhibits 18 and 19 are as consistent with Koru's recognition of rival jenmi (the 12th defendant) as with his recognition, of the plaintiff, and Exhibit I, by recognizing the latter, affords ground for supposing that Koru if he meant to recognize any jenmi meant to recognize the 12th defendant rather than the 1st plaintiff. The 1st plaintiff, then, was out of possession and Koru was in possession for more than twelve years without any recognition of 1st plaintiff's right, and the plaintiff's right is, therefore, barred under Article 142 of Schedule 2 of the Limitation Act (S. A. No. 785 of 1894, unreported), unless, as already stated, Koru's possession, was that of a tenant under the oral letting alleged by the plaintiff.
4. We must, therefore, ask the Subordinate Judge to return a finding on this issue, on the evidence on record, within six weeks of the date of receipt of this order. Seven days will be allowed for filing objection after the finding has been posted upon this Court.