Panchapakesa Ayyar, J.
1. The appellant in the second appeal is one Nathuram Sait, the plaintiff in O. S. No. 237 of 1949, on the file of the District Munsif's Court, Hosdrug (O. S. No. 71 of 1948 on the file of the District Munsif's Court, Kasargod). He had brought the suit, praying for a permanent injunction restraining the first defendant, Gopalakrishnayya, for entering, claiming to be the kuzhikanomdar, the suit land, S. No. 451/2, of West Eleri village, measuring 16 acres 40 cents, and containing a valuable pepper garden, and restraining defendants 2 and 3, Abdul Khader and Abdul Rahman, from joining the first defendant in any trespass on the said land which Nathuram Sait claimed to be in his exclusive possession and enjoyment ever since 11-4-1937, when it was delivered to him through Court by P. W- 2, the amin, in the presence of P. W. 1, his agent.
Nathuram Sait had filed O. S. No. 13 of 1826 on the file of the Sub Court, Tellicheny, against the-Kooleri family, a family of Moplah Kuzhikanom-dars under the Palat tarwad, in respect of this land and several other lands, and had got a decree. In pursuance of that decree, he had filed R. E. P. No. 289 of 1927 for attaching the suit lands and other lands, claiming them to be kuzhikanorn lands of the Kooleri family.
The suit land was attached in February 1928. One Shiba Ummabi, a junior member of the Kooleri family, filed a claim petition, Ex. A-5, claiming that the suit land was her separate property, and not the property of the Kooleri family, of which one Abdul Khader was the then ejaman. That claim petition was allowed by the Subordinate Judge. But the plaintiff took it in appeal, and the High Court, finally, by its order, dated 20-11-1934 (Ex. A-4) held that the suit land belonged in kuzhikanom to the Kooleri family, and not to Shiba Ummabi, and ordered the re-attachment of the land.
It was accordingly re-attached. The plaintiff, from abundant caution, filed R. E. P. No. 81 of 1935 for bringing the suit land to sale. He also filed R. E. A. No. 262 of 1935, showing the correct survey number of the suit land as 451/2. When the lands. were brought to sale, the plaintiff bought them himself on 9-12-1936. Ex. A-6 is the sale certificate; and it includes the suit land as well as several other lands. On 11-4-1937, P. W. 2, the amin, delivered the suit land and other lands to the plaintiff's. agent, P. W. I. P. W. i had been directed by P. W. 2 to take the Shanbhogue of the village to the spot, to be present at the delivery. P. W. 1 had reported to P. W. 2 that he was absent from the village and so, could not be taken. The Patel was present at the delivery.
2. Meanwhile, on 25-12-1934, the first defen-dant's father obtained an oral lease from Shiba Ummabi under Ex. B-1, regarding the suit land. He was directed to clear the forest and plant pepper vines. According to D. W. 7, there was no pepper on the land in the beginning of 1935. According to P. W. 1, the plaintiff's agent, there was a compact block of 10 acres in the suit land covered by. pepper garden at the time of the delivery, and the rest of the suit land was forest. The kuzhikanom obtained by 'the first defendant's father from Shiba, under Ex. B-1 was only in respect of 10 acres.
On 4-6-1935, a regular kuhzikanom maroupat, Ex. B-4, was executed by the first defendant's father to Shiba Ummabi in respect of the 10 acres, Ex, B-5 is a counter part thereof. On 9-9-1940, the first defendant's father got, under Ex. B-8, the jennam right in respect of the suit land from a member of the Palat tarwad, and he claimed to bave become the full owner of the suit land thereafter. Of course, the plaintiff does not admit the genuineness or bind-jng nature of Ex. B-8; but we are not concerned with that in this case.
3. In the suit, vigorous contentions were raised by the first defendant. According to him, the plaintiff never attached the suit land in R. E. P. No. 289 of 1927 or R. E. P. No. 8.1 of 1935, and that land was not brought to sale or purchased by the plaintiff, and it was merely included by mistake in the court sale certificate Ex. A-6. He also contended that Ex. A-7 was a mere paper delivery and that the suit land was never really delivered by P. W. 2 to P. W. 1, the plaintiffs' agent. He said that he Avas all along in possession of this pepper garden and was never ousted out of it, and the pepper garden was never handed over to P. W. 1 by P. W. 2. He denied that the plaintiff was ever in possession of the suit land or any portion of it.
4. The learned District Munsif held that there was actual physical delivery of the entire suit land by P. W. 2 to P. W. 1 under Ex. A-7, that the plaintiff continued to be in possession of the entire suit land ever since Ex. A-7, that the first defendant, aided by defendants 2 and 3, was threatening to trespass on the suit land, and that, therefore, the plaintiff was entitled to the permanent injunction asked for. So, he decreed the suit in favour of the plaintiff.
5. The first defendant, Gopalakrishnayya, took the matter in appeal to the District Court in A. S. No. 261 of 1950. The learned District Judge of South Kanara also held that the delivery of the suit land by P. W. 2 to P. W. 1 was physical delivery of the land, and not merely a paper delivery or symbolic delivery, and that the contention of the first defendant that the suit land was not attached or brought to sale, and that it was included in Ex. A-6 by mistake could not be upheld, any more than bis contention that the delivery under Ex. A-7 was a mere paper delivery or symbolic delivery.
But he found, on the evidence, that the plaintiff had not shown that except for the moment when the suit land was delivered over to his agent, P. W. 2, under Ex. A-7, he was in possession of any portion of the suit land. He held that he was not in possession after 11-4-1937. He considered that illustration (d) to Section 114 of the Indian Evidence Act could not be invoked for raising a presumption that once he was given physical delivery of the suit land on 11-4-1937, under Ex. A-7, be must be presumed to have continued in possession of the suit land till the date of filing the Suit (30-1-1948) unless satisfactory evidence to the contrary was adduced.
In his opinion the physical delivery on 11-4-1937 was a thing of the moment and could not bo equated with possession of the land in the normal sense of the term, and, so, the presumption could not be raised in favour of the plaintiff. Dealing with the evidence let in by the plaintiff regarding his alleged actual enjoyment of the suit land after delivery, he characterised it as wholly unsatisfactory and unconvincing, as the plaintiff, who claimed to have got large quantities of valuable pepper from the land and to have accounts regarding such pepper, had finally failed to produce any accounts, though he was a trader and should have kept accounts normally and had not even stepped into box.
He also found that there was no evidence let in on behalf of the plaintiff except the shaky and unreliable evidence of P. W. 1, an interested witness, regarding the possession of the suit land after delivery, and considered that if. the plaintiff was really in possession after delivery til! the filing of the suit, he could have examined the lessees or neighbours or other dis-interested and credible witnesses and proved his possession. He found that though the evidence of the first defendant, Gopalakrishnayya and his witnesses, regarding his possession of the suit land, was not very satisfactory, still, it was more satisfactory than the evidence on tha side of the plaintiff regarding possession.
He was of opinion that the weakness in the first defendant's case was one of lack of title, than of possession, as he considered Exs. B-l, B-2, B-4 and B-5 to be spurious documents brought into existence by Shiba Ummabi and the first defendant's father in order to bolster up the title of defendant 1's father to kuzhikanom and defeat the plaintiff of his rights.
As the plaintiff had only claimed the relief of permanent injunction and had valued the suit only for that, and had not also sued for recovery of possession of the suit land, or amended the plaint claiming that relief, he held that, in the absence or proof of possession of the suit land by the plaintiff after the delivery of it to him on 11-4-1937, he could not be granted the injunction prayed for. So, he allowed the appeal and dismissed the plaintiff's suit with costs throughout. Hence this second appeal.
6. We have perused the entire records, and heard the learned counsel on both sides. Mr. N. Sundara Aiyar, for the plaintiff-appellant, urged that the lower appellate Court went wrong in its findings and that it should have held that once it was proved that the delivery on 11-4-1937, under Ex. A-7, was a physical delivery, and not a paper or symbolic delivery of possession, possession must bo presumed to have continued With the plaintiff till the date of the filing of the suit on 30-1-1948, both under illustration (d) to S. 114 of the Indian Evidence Act, and under the rulings in Ramanathan Chettiar v. Lakshmanan Chettiar, ILR 54 Mad 622: AIR 1931 Mad 644 (A) and Kayichankandi Ayissa v. Kunhal-kalanthan : AIR1948Mad420 , which have held that in the case of land like jungle land, waste land, sand bed, bill top etc., where actual cultivation and acts of possession of similar nature are not to be expected, possession would follow title.
We agree with the learned District Judge that illustration (d) to S. 114 of the Indian Evidence Act would not apply to the ten acres of pepper garden which can never be called jungle land etc. If is obvious that a momentary delivery of possession, even of real possession and not symbolic possession, not followed by subsequent possession and enjoyment, will not raise, in the case of such cultivated land, the presumption that it is continued for years together till the filing of the suit, in the absence of evidence on the part of the first defendant that he and his people continued on the land after the delivery of possession and continued the cultivation.
Often it happens that a man is given possession of a cultivated land, but dare not go back to it and cultivate it, because of the active opposition by the person who has done the cultivation before and is still squatting on it. It is also quite possible, in the light of the evidence in this case, that P. W. 2. the amin, when delivering the suit land and several other lands under Ex. A-7, merely delivered to P. W. 1, the jungle portion of the suit land not covered by the pepper garden.
As already stated, the suit land measures 16 acres 40 cents, of which, according to the evidence of P. W. 1, examined on behalf of the plaintiff himself, ten acres formed a compact pepper garden at the time of the delivery on 11-4-1937, and the remaining 6 acres 40 cents consisted of jungle, P. W. 2 would have taken the line of least resistance and delivered the jungle part of the land to P. W. 1. It is significant that under Exs. B-1, B-2, B-3 and B-4, only ten acres were given on kuzhikanom to the first defendant's father, and the first defendant himself, in his evidence as D. W. 2, swore that only in those ten acres did his father raise the pepper plants in 1935.
It is quite unlikely that the first defendant's father and the first defendant would have allowed the ten acres of the suit land, forming a compact and valuable pepper garden raised by them, to be delivered over to the plaintiff or his agent. Their title was of course defective, But there is no doubt in our minds that their possession and enjoyment of the ten acres and the pepper produced thereon was real. The evidence of P. W. 1 to the effect that, even at the time of the delivery, the ten acres formed a compact pepper garden shows that the plaintiff had nothing to do within the raising of the pepper garden.
The only feeble plea put forth by P. W. 1 was that Shiba Unimabi got the pepper garden raised on the ten acres. But Exs. B-l, B;2 and B-3 and B-4 go against that case. It is significant that the plaintiff did not step into the witness box and swear that he was in possession of the ten acres of pepper garden from the time of the delivery on 11-4-1937 till the filing of the suit on 30-1-1948. Nor was any satisfactory explanation given as to why the plaintiff, a trader did not produce the accounts, showing alleged receipt of the income from the pepper garden which was very considerable by him for eleven long years, though, at first, it was stated that he had such accounts in his possession, and it was natural to expect him to keep such accounts.
Nor were any neighbours or other credible witnesses, or any labourers employed by him examined to show that he had cultivated the pepper garden from 11-4-1937 or picked the pepper crop. We have no doubt that the first defendant and his father continued to cultivate and enjoy this garden and that the plaintiff did not go to the pepper garden and enjoy it. after the delivery, obviously because of the expected violent opposition of the first defendant and his father who had raised the pepper garden. Defect of title has never deterred tenants in India entitled to their improvements, from clinging on to such valuable lands.
7. So, the only relief which could be given tothe plaintiff is regarding the remaining 6 acres 40cents. That was admittedly jungle land at the timeof the delivery on 11-4-1937 under Ex, A-7. Sucha jungle land is not capable of cultivation normally,unless, of course, the jungle is cleared and a peppergarden or other cultivation undertaken thereon. Regarding.such land, possession will follow title, following the rulings in ILR 54 Mad 622: AIR 1931Mad 644 (A) and : AIR1948Mad420 , as rightly urged by Mr. N. SundaraAiyar.
We are not impressed with the contention of Mr. Krishna Rao, for the first defendant, that the ten acres granted under Exs, B-1, B-2, B-4 and B-5 of kuzhikanom became 16 acres 40 cents on re-measurement. Such a large increase on re-measurement is most improbable. There is also no proof of any such re-measurement and increase. . The very fact that at the time of the delivery, ten acres were found to. be a compact pepper garden, and the remaining six acres 40 cents a jungle, and that pepper was only cultivated in those ten acres, and that even in Ex. B-8, dated 9-9-1940, only ten acres were mentioned as being in his possession, when the first defendant got the jenmam right in the suit land, will show the unsustainability of this theory.
Mr. Krishna Rao urged that the first defendant could have got the entire suit land had he sued for possession or amended the plaint asking for possession, and that he had become the jenrni in respect of the entire 16 acres 40 cents and that the patta for the entire suit land now stands registered in his name, and that he had been paying the kist for the entire 16 acres 40 cents. But we are not concerned with the might-have-been's, had the plaintiff asked for possession before limitation, or with his alleged jenmam right, in this second appeal.
As regards the kist, both the plaintiff & the firstdefendant seem to have paid kist for the land. Thatis a common phenomenon where two rivals claimthe same land. A patfa in Malabar is generallygranted to, the jenmi, and, so the mere fact that thepalta for the entire 16 acres 40 cents was grantedto the first defendant, who claimed to have becomethe jenmi under Ex. B-8 will not show that the firstdefendant has been, in possession of the entire 16acres 40 cents from the time of Exs, B-1 and B-2,as urged by him.
There was no satisfactory evidence let in by the first defendant to show that he was in possession of the remaining 6 acres 40 cents on the date of the filing of the suit on 30-1-1948 and he could have easily let in such evidenced he were in such possession. Mr. Krishna Rao urged that the entire 16 acres 40 cents were today under defendant I's pepper cultivation. That may or may not be so; there is no evidence either way. We are satisfied that defendant 1 was not in possession of the 6 acres 40 cents on the date of filing of the suit.
It is possible that after the filing of the suit in 1948, the jungle land might have been trespassed on and converted into a pepper garden by the first defendant, enraged at the plaintiff's attempt to deprive him of his ten acres of pepper garden. That will not help him to resist the injunction regarding the six acres 40 cents which he trespassed on only after the filing of the suit.
8. In the end, therefore, we modify the judgment and decree of the learned District Judge in appeal, by granting the plaintiff an injunction in respect of the 6 acres 40 cents of former jungle land against all the defendants, and giving him the right to get six acres 40 cents of former jungle land). We also direct the plaintiff and the first defendant to give and take proportionate costs throughout, the plaintiff getting two-fifths of his costs, and the first defendant 3/5ths of his costs, in all three Courts. In all other respects, the judgments and the decree of the lower appellate Court will stand confirmed.