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Avichi Chettiar Vs. Valliappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad490; 163Ind.Cas.855
AppellantAvichi Chettiar
RespondentValliappa Chettiar and ors.
Excerpt:
- - the second appeal therefore must fail and it is dismissed with costs of the plaintiffs-respondents.pandrang row, j.1. in this appeal which arises out of a suit for a declaration of the plaintiffs' title to a certain oorani or tank the trial court found that though the plaintiffs had not proved their ownership or title, nevertheless they had established a prescriptive title to the same by reason of their exclusive enjoyment from at least 1875 onwards. on appeal by defendants 1 to 3 the learned subordinate judge went further than the trial court and found that the plaintiffs had established their title as owners of the oorani with the result that the appeal was dismissed. in this second appeal by defendant 1 it is contended that both the courts below went wrong in not taking into account what the appellant's advocate claims to be a legal presumption in favour of the appellant, namely.....
Judgment:

Pandrang Row, J.

1. In this appeal which arises out of a suit for a declaration of the plaintiffs' title to a certain oorani or tank the trial Court found that though the plaintiffs had not proved their ownership or title, nevertheless they had established a prescriptive title to the same by reason of their exclusive enjoyment from at least 1875 onwards. On appeal by defendants 1 to 3 the learned Subordinate Judge went further than the trial Court and found that the plaintiffs had established their title as owners of the oorani with the result that the appeal was dismissed. In this second appeal by defendant 1 it is contended that both the Courts below went wrong in not taking into account what the appellant's advocate claims to be a legal presumption in favour of the appellant, namely that everything situated in a village or a zamindari must be presumed to belong to the inamdar to whom the village was granted or to the zamindar to whom the zamindari was granted. No doubt, if at the time of the grant any particular oorani existed in the village, it would in the absence of evidence to the contrary be sufficient to show that the oorani also passed with the grant. There is, how-fever, no evidence whatever in this case that the plaint oorani was in existence at the time of the grant of the village to the ancestors of the appellant. It is moreover found that the advocate who appeared for the appellant in the trial Court admitted that it could not be said that the defendants were the owners of this oorani simply because they were the owners of the village in which it was situated. It is suggested now by the appellant's advocate that this admission was made in ignorance of the law laid down by their Lordships of the Judicial Committee in the Urlam case. This suggestion appears to be improbable. On the other hand it is more likely that this admission was made because the learned pleader was advised or instructed that the oorani came into existence only after the grant of the village. In any case there is nothing to show that either of the Courts below has erred in its decision by reason of any omission to give proper weight to a legal presumption which actually did arise in the case.

2. The foundation for the legal presumption has not been laid in this case and in the absence of such foundation it cannot be said that the Courts below were in error in not keeping before their minds such a presumption. The evidence that was adduced in the case on the side of the plaintiffs was certainly sufficient in law to support the findings of the lower appellate Court both as regards their possession for a period of nearly 50 years and also in respect of their title. The documentary evidence which was accepted is sufficient to show that the plaintiffs and their ancestors have been exercising acts of ownership for many years in respect of the suit oorani, that is to say by using the water thereof for irrigation of their lands, by fishing in the oorani, by cutting trees on the bund and also by repairing the oorani when necessary. They have also referred to the oorani in the documents executed by them, one of which is as old as 1875, as their own property. In these circumstances I am of opinion that no case has been made out for interference in second appeal with the finding of fact by the lower appellate Court in favour of the plaintiffs in the suit. The second appeal therefore must fail and it is dismissed with costs of the plaintiffs-respondents. (Leave to appeal refused.)


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