Horace Owen Compton Beasley, Kt., C.J.
1. The appellants here, the plaintiffs in the suit, claimed a declaration of their title to waste land and a mandatory injunction against the defendants. In the District Munsif's Court and also in the first appellate Court they succeeded and got the declaration sought for. Both the Courts have found that the plaintiffs were in exclusive possession, that is to say, exclusive possession of this land as against the defendants. In second appeal, the learned Judge found as follows:
The Subordinate Judge has also found that the land has not been assigned to either party and that neither party has established title to it otherwise. He has found that the plaintiffs are now in possession, by which I understand he means exclusive possession; but he has not found for how long they have been in exclusive possession and the evidence on that question is neither clear nor satisfactory. That being so, in a suit in respect of a village nattam, it is clear that there is not the necessary foundation for even the declaration and injunction made by the Subordinate Judge.
2. The reference in that judgment to the failure of the Lower Court to find how long the plaintiffs had been in exclusive possession of this land which he describes as village nattam clearly indicates that the learned Judge in second appeal had in mind the question of the plaintiffs establishing a title to the nattam land by adverse possession. Otherwise, it is difficult to see how a finding as to the length of time of possession can have any bearing. All the three Courts having found the plaintiffs' exclusive possession, it seems to me quite clear that, as against the defendants, the plaintiffs are entitled to a declaration that they are lawfully entitled to possession of this land, because even in the case of trespassers, the trespasser in possession is entitled as against another trespasser to get such a declaration. This is quite clearly stated in Ismail Ariff v. Mahomed Ghouse This is a decision of the Privy Council following the well-known principle. Here it is contended on behalf of the respondents that the evidence upon which the finding was come to with regard to the plaintiffs' possession was not such as could in law establish title by adverse possession; and reference has been made to one or two cases where it is stated that storing manure and having cattle upon the land are not such acts as can be held to establish adverse possession. This case does not rest upon those acts only because there is evidence of the existence of a fence to this land and an allegation that it was erected by the plaintiffs. Any act more adverse to the possession of the real owner than to erect a fence on a property it is difficult to imagine. Also there was a tree upon the land the fruits of which were enjoyed by the plaintiffs. Therefore this case goes far beyond the cases to which reference has been made. Apart from that, both the Lower Courts have found exclusive possession that finding has been accepted by the learned Judge in second appeal and we are not going behind that finding. The position, there-: fore, is that the plaintiffs established their exclusive possession which the defendants failed to do. Their case, though not a strong one, was a better one than the defendants'. That entitled them to the relief they asked. They certainly could not ask for a declaration that, as against the real owner or as against the world, they are the owners of the property which they appear to have asked for in the plaint although they there state that they have been in possession of the property from time immemorial; That allegation, in my view, was quite sufficient for them to fall back upon the case of a possessory title when a better title put forward by them was negatived. I agree that, had such a point been raised for the first time in first appeal, it ought not to succeed but in this case it was raised in the trial and an issue as to who was in possession was taken; and throughout no point was taken until this stage that the Court was not entitled to grant a declaration with regard to possessory title by reason of the way in which the plaint was framed. The case to which we have been referred in support of the argument of the respondents is Maikal Servai v. Thambuswami Servai (1914) 1 L.W. 853, a very different case to this because there in the judgment it is Stated:
There is no indication of such a claim in the plaint, which, as already stated, bases the suit on title- by inheritance and nothing else; and the contention appears to have been first set up in the course of the hearing in the lower appellate Court. We consider, following Somasundaram Chetty v. Vadivelu Pillai I.L.R. (1908) Mad. 531 and Shiro Kumari Debi v. Govind Shaw Tanti I.L.R. (1877) Cal. 418, that plaintiff should not have been given a decree on the basis of a claim not set up in the plaint or raised in the issues or even set up in the first appeal petition.
3. This is not such a case. I am of the opinion that our learned brother in second appeal was in error in thinking that the question of length of possession was the guiding test. The only question was the possession of the plaintiff as against the defendant and no question as to who the real owner of the land was unless it were the defendant fell to be decided and a finding that this land is village nattam was unnecessary. That being so, this Letters Patent Appeal must be allowed with costs here and in the second appellate Court. There will be a declaration that the plaintiffs are lawfully entitled to possession of the property and a direction that the defendants are not to interfere with their possession.
4. I agree.