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Tummalapalli Veeramma and anr. Vs. Akkivarapu Veerappa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1937Mad282
AppellantTummalapalli Veeramma and anr.
RespondentAkkivarapu Veerappa and ors.
Excerpt:
- - , that the plaint properties fell to the share of their father during the partition which took place between him and his brother, the late bapadu, father of defendants 1 and 2, that this partition took place a long time ago, that the plaint properties were being enjoyed by the plaintiffs' father exclusively and after his death by his widow, i. in other words the suit was clearly one for recovery of possession based on the plaintiffs' possession and their unlawful dispossession by the defendants......appeal arises out of a suit instituted by the two plaintiffs for recovery of possession of the plaint properties with mesne profits. the plaintiffs claimed to recover possession on the strength of the following allegations, viz., that the plaint properties fell to the share of their father during the partition which took place between him and his brother, the late bapadu, father of defendants 1 and 2, that this partition took place a long time ago, that the plaint properties were being enjoyed by the plaintiffs' father exclusively and after his death by his widow, i.e., the mother of the plaintiffs, till her death in 1919, or thereabouts and that the defendant's father usurped possession of the lands and caused obstruction when the plaintiffs attempted to get back possession in 1920.....
Judgment:

Pandrang Row, J.

1. This second appeal arises out of a suit instituted by the two plaintiffs for recovery of possession of the plaint properties with mesne profits. The plaintiffs claimed to recover possession on the strength of the following allegations, viz., that the plaint properties fell to the share of their father during the partition which took place between him and his brother, the late Bapadu, father of defendants 1 and 2, that this partition took place a long time ago, that the plaint properties were being enjoyed by the plaintiffs' father exclusively and after his death by his widow, i.e., the mother of the plaintiffs, till her death in 1919, or thereabouts and that the defendant's father usurped possession of the lands and caused obstruction when the plaintiffs attempted to get back possession in 1920 or thereabouts. In other words the suit was clearly one for recovery of possession based on the plaintiffs' possession and their unlawful dispossession by the defendants. In such a simple suit the real question for decision was whether the plaintiffs were in possession and whether they were dispossessed by the defendants as alleged. The trial Court recognized that this was the most important issue in the case and devoted considerable attention, to it and discussed the evidence very fully and came to the conclusion that the properties in question had fallen to the share of the plaintiff's father and that he and his widow were in exclusive enjoyment of the same and that the contention of the defendants to the effect that the widow was let into possession as a provision for her maintenance was not true. There was no doubt a further question raised as to whether the civil Court had jurisdiction to entertain the suit as the properties were said to be, and were in fact admitted to be, part of the washerman service inam in the village. This question was decided in the affirmative by the trial Court and a decree was passed in favour of the plaintiffs.

2. On appeal however the Subordinate Judge reversed the judgment of the trial Court on the sole ground that the civil Court had no jurisdiction to entertain the suit. The present suit is not one brought by the plaintiff's either as holders of the office or for anything which is alleged to be the emoluments of any village office. There was thus nothing to prevent the civil Court from dealing with the claim set up in the plaint which was to recover possession of the properties from which the plaintiffs had been dispossessed by the defendants. The previous possession and the subsequent dispossession were sufficient to give the plaintiffs a cause of action cognizable by the civil Court and there was no necessity to raise the question of the jurisdiction of the civil Court on the ground that the lands were actually service inam lands. The prohibition contained in Section 21, Madras Hereditary Village Offices Act, relates only to the consideration or decision of any claim to succeed to any village office or of any question as to the rate or the amount of the emoluments or any claim to recover the emoluments of any such office. In other words, where an office is claimed or any emoluments attached to a village office are claimed as such, the civil Court cannot decide competing claims either as regards the office or as regards the emoluments attached to that office, but where the claim is not based on the right to the office or to anything on the ground that it forms the emoluments of an office the civil Court's jurisdiction is not ousted. I have no doubt that the learned Subordinate Judge was wrong in coming to the conclusion that there was no jurisdiction in the civil Court to entertain the present suit.

3. The further question that was decided by the learned Subordinate Judge, viz. that the plaintiffs should not have been given a decree on the basis of title obtained by adverse possession, need not be considered, for the plaintiffs' claim was really not rested in the plaint on any title acquired by adverse possession. Apparently such a prescriptive title was put forward in the trial Court in the course of the argument on behalf of the plaintiffs and the lower appellate Court chose to deal with it and axpressed an opinion in favour of the plaintiffs. But the basis of the claim is not any such prescriptive title. The basis of the plaint claim is, as stated above, the dispossession by the defendants of the properties of which the plaintiffs and their parents were in possession. Such possession can be protected when there is dispossession and the remedy is certainly to be sought in a civil Court. In short the suit was one based on trespass and it is a matter for surprise that there should be any doubt on the question whether a civil Court has jurisdiction to decide a suit based on a trespass, and in which only possession is sought to be recovered of the properties on which there was a trespass.

4. The learned Subordinate Judge has not really decided the substantial issue that arose in the suit, viz., whether the plaintiff's father and mother were in exclusive possession of the plaint properties. No doubt he has stated that though it is unnecessary to record a finding on this point he would, if he had been called upon to give a finding, do so against the plaintiff because he did not accept the view of the trial Court that it was satisfactorily proved that the plaintiff's parents were in possession. This provisional finding is not according to law because there has been no discussion whatever of the evidence and no reason has been given, except the general reason that the evidence is not satisfactory, to upset a very closely reasoned and elaborate judgment of the trial Court on this point. This so-called finding of the lower appellate Court must be regarded as being contrary to law and the point must be decided afresh after due consideration of the evidence in the case. The decree of the Subordinate Judge is therefore set aside and the appeal is remanded to the lower appellate Court for fresh disposal according to law in the light of the observations contained in the judgment, and in particular after deciding on the merits the question whether the plaintiff's father and mother were in exclusive possession of the plaint properties as alleged in the plaint. The appellants in this appeal are entitled to their costs in this Court; the costs in the Courts below should be provided for in the revised decree of the lower appellate Court. The appellants are entitled to a refund of the court-fee paid on the memorandum of appeal as the lower appellate Courts' decree was based on its decision on the preliminary point of jurisdiction. Leave to appeal is refused.


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