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Kunhanna Rai (Died) and anr. Vs. Manakke and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad343; 117Ind.Cas.796; (1929)56MLJ315
AppellantKunhanna Rai (Died) and anr.
RespondentManakke and ors.
Cases ReferredChockalingam Chetti v. Seethai Achy I.L.R.
Excerpt:
- - but when he came to record a finding, he distinctly found that the possession of the suit properties was adverse to the surya branch. this disposes of the appeal as well as the memorandum of objections......a decree to the plaintiffs as regards the house in which the plaintiff's branch is living and the home farm lands which were in the possession of the branch. against the decree in the second appeal, this letters patent appeal is preferred. a preliminary objection was taken to the maintainability of this appeal on the ground that the 2nd plaintiff was not made a party to it. this came on before us about three years ago and we allowed the appellants to file an application for bringing on record the 2nd plaintiff as a respondent. the application was filed on 15th december, 1925 and we ordered notice on 16th december, 1925. after several adjournments it was ordered to be posted along with the l. p. a. by jackson, j., on 2nd august, 1926. mr. sitarama rao who appears for the respondents.....
Judgment:

Devadoss, J.

1. The plaintiff's branch of the Bellipadi family brought a suit for a declaration that certain properties belonged to the branch and for an injunction restraining the 1st defendant the ejman of the family, from interfereing with their possession. Both the Lower Courts dismissed the suit and on Second Appeal Mr. Justice Krishnan gave a decree to the plaintiffs as regards the house in which the plaintiff's branch is living and the home farm lands which were in the possession of the branch. Against the decree in the second appeal, this Letters Patent Appeal is preferred. A preliminary objection was taken to the maintainability of this appeal on the ground that the 2nd plaintiff was not made a party to it. This came on before us about three years ago and we allowed the appellants to file an application for bringing on record the 2nd plaintiff as a respondent. The application was filed on 15th December, 1925 and we ordered notice on 16th December, 1925. After several adjournments it was ordered to be posted along with the L. P. A. by Jackson, J., on 2nd August, 1926. Mr. Sitarama Rao who appears for the respondents strongly objects to the 2nd plaintiff being made a party to the L.P.A. and he relies upon a recent decision of the Privy Council in Chockalingam Chetti v. Seethai Achy I.L.R. (1927) Rang. 29 : 55 I.A. 7 : 1927 54 M.L.J. 88. In that case, their Lordships hold that the Court had no power to make a person a party who was not made a party to the appeal by the appellant, although he was a party to the proceedings in the Court below. In that case, the parties ought to be brought on the record in appeal was left only by the appellant. It is only when he discovered that he would suffer by reason of that person not being made a party, he applied to the Court for his being made a party. The facts here are different. In this case, owing to an oversight of either the clerk or the person who instructed the vakil who filed the L.P. Appeal, the name of the 2nd plaintiff who was the 14th respondent in the Second Appeal was left out. And there is a reason for his name being left out, because it resembled very closely the name of the 3rd defendant. We think in these circumstances, that it was a bona fide mistake and this Court has power to correct a mistake and to have the appeal memorandum amended by inserting the proper name and bringing on record the proper party. We do not think that the decision of their Lordships of the Privy Council in Chockalingam Chetti v. Seethai Achy I.L.R. (1927) Rang. 29 : 55 I.A. 7 : 1927 54 M.L.J. 88 in any way prevents us from giving relief when we find that owing to a similarity of names a mistake was made in not making a person a party to the appeal. We, therefore, allow the petition as prayed for.

2. Coming to the merits of the case, to learned Judge (Mr. Justice Krishnan) has evidently owing to an oversight, thought that the Lower Appellate Court found that the home farm land did not become the property of the family by adverse possession. He observes at page 7 of his judgment as follows:

As regards the surrounding home farm lands which are cultivated by the members of the Surya Branch, his finding as regards adverse possession will not apply. He says so expressly in para. 15 of his judgment.

3. This observation is not strictly accurate, as the District Judge does not say in para. 15 of his judgment that his finding as to adverse possession does not affect the home farm lands. What he says in para. 15 is

So my finding with regard to possession only applies to the lands and garden excluding the Surya house which has been always in the occupation of the members of the Surya branch.

4. His finding is that the house in which the members of the Surya branch lived did not form part of the property of the family. As regards home farm lands, his finding is clear as will be seen from para. 18 of his judgment wherein he says:

The said family continued in possession and that the said possession is adverse to Surya branch though the manager of the Surya branch was actually collecting rent and carrying on home farm cultivation on behalf of Bellipadi family.

5. The possession of the home farm lands by the Surya branch was on behalf of the Bellipadi family and therefore the possession was one which would not enure for the benefit of the Surya branch but would only enure for the benefit of the Bellipadi family.

6. Mr. Sitarama Rao strongly urges that the District Judge found that the possession of the suit properties by the Bellipadi family was traceable to a mortgage. No doubt, the learned District Judge in order to account for the possession of the title-deeds by the plaintiffs suggested that the arrangement might be a mortgage. But when he came to record a finding, he distinctly found that the possession of the suit properties was adverse to the Surya branch. It is urged by Mr. Sitarama Rao that inasmuch as the District Judge found that the title did not pass by sale or by the arrangement of 1872, it must be held that he did not find title by adverse possession in the 1st defendant. We are unable to accept this contention. What the District Judge meant was, that no title by sale was made out and after saying that he went on to consider whether title was acquired by the 1st defendant's family by adverse possession. He considers that point in paragraph 13 and the following paragraphs. On pages 12 and 13, he refers to the various admissions by the plaintiffs as to the home farm lands being the property of the family. Seeing that there is evidence to support the finding of the learned District Judge that the home farm lands became the property of the family by adverse possession, we cannot interfere with his finding. In the result, the decree of the learned Judge will be modified by omitting the home farm lands from it. As regards the house, the title of the Surya branch to the house in which it lives is not seriously distributed. The decree of the learned Judge will stand only as regards the house. This disposes of the appeal as well as the Memorandum of Objections.

7. The parties will pay and receive proportionate costs throughout.


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