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Venkatarama Iyer Vs. Subramania Sastry and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in78Ind.Cas.37
AppellantVenkatarama Iyer
RespondentSubramania Sastry and ors.
Cases ReferredWatson v. Ramchand and Lachmeswar Singh
Excerpt:
adverse possession - co-owners--transferee from one co-owner--possession when adverse to other co-owners--samudayam tenure--kataiyadu tenure. - - the only facts which it is necessary to mention at this stage are that the 65th defendant's title is based on a sale-deed, exhibit 103, to his father by namasivaya pillai in 1875, whereas the 22nd defendant's title is based on the sale-deed, exhibit 150 (b), by namasivaya in 1883. prima facie the sale-deed of 1875 would take precedence over that of 1883, though it is of course possible that namasivaya pillai may have bad properties sufficient to satisfy the claims of both the purchasers. the date of its cessation is clearly most important, since, if the tenure was in force at the date of 22nd defendant's entry or his vendees, that fact would.....1. this appeal is by the 117th defendant and it is opposed mainly by the 22nd defendant. the hearing has taken a considerable time, but the issues, now that the facts are ascertained, are clear.2. the suit was brought for the partition of the samudayam land of a village in the tanjore district, the samudayam tenure, as explained in the district manual, being a holding in common by the village community known as the mirasidars. it is not disputed that the land, of which partition is claimed, was and is samudayam land; nor has any serious attempt been made to dispute here that it has never been divided and that it is now particle. on this point it may be observed that the 22nd defendant no doubt set up a previous partition in his written statement; but it is clear that the matter is res.....
Judgment:

1. This appeal is by the 117th defendant and it is opposed mainly by the 22nd defendant. The hearing has taken a considerable time, but the issues, now that the facts are ascertained, are clear.

2. The suit was brought for the partition of the Samudayam land of a village in the Tanjore district, the Samudayam tenure, as explained in the District Manual, being a holding in common by the village community known as the mirasidars. It is not disputed that the land, of which partition is claimed, was and is Samudayam land; nor has any serious attempt been made to dispute here that it has never been divided and that it is now particle. On this point it may be observed that the 22nd defendant no doubt set up a previous partition in his written statement; but it is clear that the matter is res judicata against him in consequence of Exhibits T.A. and R, the judgments in O.S. No. 367 of 1900. The lower Appellate Court held that the parties before it had established their rights to a certain number of shares in the Samudayam, of 30 59/64 shares, and, in a portion of its judgment which has formed the principal subject of discussion, it allowed the 22nd defendant to retain as his share the plots in item No. 1, of which he is already in possession, item No. 1 being 4 1/2 veils in extent and the most valuable plot of the property in dispute and consisting in padugai land. The question argued first has accordingly been whether the 22nd defendant has a right to retain, in a division, the plots in item No. 1, of which he is in possession.

3. Prima facie, of course, the finding, which has already been referred to, in favour of the partible character of the land, entails that no share has been localized so far, since localization could only take place on, the ascertainment of shares on partition. The lower Appellate Court has, however, supported the claim of the 22nd defendant in two ways; firstly, on the ground that he has proscribed for the ownership of the plots he is in possession of and, secondly, on certain equitable considerations. It has no doubt not distinguished these two grounds very carefully in its judgment but we think that its decision is based on both of them.

4. Before dealing with the law regarding the question of prescription, we may observe that something has been said as to the Karaiyedu tenure of the village. This tenure was not referred to at all in the pleadings and it appears to have attracted very little, if any, attention before the District Munsif. More, however, was said of it in the lower Appellate Court, though it is not clear that any finding was reached as to the existence in the village of the tenure. The tenure, we may observe, as the District Manual defines it, consists in a system of shifting severalty of ownership, the village lands being redistributed among the mirasidars at intervals. It is clear that, when a suit is brought for the partition of the village lands for change to individual ownership, it cannot affect directly the sustainability of such a suit, whether the tenure of the village is ownership by the community, that is, ordinary Samudayam tenure, or whether it is the shifting severalty of the ownership of which the Karaiyedu tenure consists; and accordingly the only importance for our present purpose of the allegations as to Karaiyedu is that they may, if they are established, afford an explanation of the origin and character of the separate possession, on which the 22nd defendant would establish his prescription.

5. To turn to the direct consideration of that plea we find the District Munsif dealing at some length with the 22nd defendant's title to the different portions of item No. 1 and with his enjoyment; but the lower Appellate Court has not considered the evidence relating to that part of the case in any detail. It has contented itself with a general statement that it thinks that the prescription is made out. Even if the plea of prescription could be accepted at once with direct reference to the evidence as to the 22nd defendant's possession, the lower Appellate Court's consideration of that evidence would be inadequate.

6. The next material objection to the lower Appellate Court's judgment is, that it has dealt with the 22nd defendant's possession on the basis that it was the possession of a stranger to the co-tenancy, to which the other parties at least belong. It has done this, because there are in various places in the pleadings and evidence general statements that the 22nd defendant is not a mirasidar. The exact meaning of such statements is not clear. It is no doubt shown that the 22nd defendant does not claim his mirasi right in virtue of any lineal descent from a previous holder of mirasi right; but that is probably the case with very few of the mirasidars of the present day. Certainly, it is not the case with all the others who are accepted by the lower Appellate Court as co-sharers in the suit village. The 22nd defendant, however, acquired his mirasi right in virtue of his acquisition of particular properties, which were in fact part of the Samudayam, but are not described with regard to shares in it. It is, of course, conceivable that such acquisitions of Samudayam properties may import an implied denial that they were part of the common property; but it will be for the lower Appellate Court to consider whether that is so, or whether the terms of the sale-deeds simply correspond with the current methods of expression regarding the common property and are consistent with the acquisition of the lands specified in them as parts of the common property and with the 22nd defendant's acqusition of the character of a co-owner or mirasidar.

7. The importance of this is that a very different measure of proof of prescription will be required according as the 22nd defendant claims to have prescribed as a stranger to the co-tenancy or as a mirasidar or co-tenant. It is possible, although we express no final opinion on the point, that the facts found proved by the District Munsif might be sufficient to justify a plea of prescription by a stranger; but, if prescription by a mirasidar or co-tenant were in question, it might then be necessary for us to consider, and the lower Appellate Court will have to consider, whether those facts included such evidence of exclusion of other co-sharers from possession or of assertion of an exclusive title as would be necessary under the strict rule to which co-owners are subject. We must accordingly call on the Additional Subordinate Judge, Tanjore, to whom the jurisdiction of the lower Appellate Court has now been transferred, to submit findings on the following issues:

8. Firstly.--Has the 22nd defendant acquired the character of a mirasidar in virtue of the purchases relied upon by him, or is he for the purpose of his plea of prescription to be regarded as not one of the co-tenants against whom he is prescribing

9. Secondly.--Whether the 22nd defendant has completed any prescription for ownership appropriate to the character which he is found to possess?

10. As we are calling for a finding with reference to adverse possession, we do not at this stage deal with the lower Appellate Court's alternative ground of decision, viz., the claim of the 22nd defendant, on equitable considerations. For the moment we would only observe that such considerations will be relevant in connection with the distribution of the shares as ascertained in a proper scheme after the preliminary decree has been passed and in order to and before the passing of the final decree. We shall, if necessary, point out, in eventually remanding the case for the passing of a final decree, one or two aspects, in which we think that the lower Appellate Court's statement of law is open to question. When findings on remand are received we shall also deal with the claim to reduction of the 22nd defendant's share on the ground that no reduction from it has already been made to correspond with the increases allowed to the shares of other parties.

11. At this stage, the only remaining matters for consideration are certain claims relating to particular items or cases of particular parties, which have been put forward in the appeal and the Memo. of Cross-objections. In the appeal there is, firstly, a claim based on the words alleged to be a proper interpretation of Exhibits 83 and 49. Before us that claim has not been disputed and we must, therefore, modify the lower Appellate Court's judgment by adding a is to the 1 15/16 the share already allowed by the Subordinate Judge to the 117th defendant.

12. Next, the 22nd defendant, in his Memo. of Cross-objections, has claimed an addition of 1/32 to his share on the ground that Exhibit N has been misread. This is not disputed. His share will be increased by 1/32.

13. The other ground in the Memo, which is argued relates to the share of the 6th plaintiff. This has eventually not been pressed before us.

14. The other claim made by the 117th defendant is that the 3/8 share awarded by the lower Appellate Court to the 65th defendant should have been deducted from the share given to the 22nd defendant. The only facts which it is necessary to mention at this stage are that the 65th defendant's title is based on a sale-deed, Exhibit 103, to his father by Namasivaya Pillai in 1875, whereas the 22nd defendant's title is based on the sale-deed, Exhibit 150 (b), by Namasivaya in 1883. Prima facie the sale-deed of 1875 would take precedence over that of 1883, though it is of course possible that Namasivaya Pillai may have bad properties sufficient to satisfy the claims of both the purchasers. The lower Appellate Court has not dealt with this aspect of the case and has not mentioned the dates of the two sale-deeds, and in the absence of such mention, we cannot consider its discussion satisfactory.

15. There are no doubt arguments which Mr. Krishnaswami Ayyar on behalf of the 22nd defendant has placed before us, and in particular the plea of res judicata, which may be decisive; but in the absence of any consideration given to the relative dates of the sale-deeds, on which the titles rest, we cannot accept the lower Appellate Court's judgment regarding this matter. We must, therefore, ask the lower Appellate Court to submit a finding on the issue :

16. What are the shares which the 22nd and the 65th defendants are respectively entitled to in respect of the purchase from Namasivaya Pillai?

17. The findings are to be submitted on the evidence already on record and are due in this Court on or before the 30th August, and seven days will be allowed for objections.

18. In accordance with the order contained in the above judgment the Additional Subordinate Judge of Tanjore submitted the following.

19. Findings.--In obedience to the order of the High Court, dated 3rd May 1921, in Section A. No. 73 of 1920, I beg to submit the following findings on the three issues remitted for the purpose:

20. 2. Issue 1.--'Has the 22nd defendant acquired the character of a mirasidar in virtue of the purchase relied upon by him or is he for the purpose of his plea of prescription to be regarded as not one of the co-tenants against whom he is prescribing?'

21. I find that the 22nd defendant acquired the character of a co-owner or mirasidar in virtue of the purchases relied upon by him.

22. Issue 2.--'Whether the 22nd defendant has completed any prescription for ownership appropriate to the character which he is found to possess?'

23. The law on the point may be stated as follows, in the language of the decisions: Uninterrupted sole possession of property by one joint owner by itself is no evidence of exclusion of other interested joint owners,' vide Hardit Singh v. Gurmukh Singh 47 Ind. Cas. 626; (1919) M.W.N. 1 : 58 P.W.R. 1918 : 64 P.R. 1918 : 24 M.L.T. 389 : 28 Cri.L.J. 437 : 1919 20 Bom. L.R. 1064 : 9 L.W. 123 : 1 U.P.L.R. 8 (P.C.). 'Acts of ownership are not, in tenancies-in-common, necessarily acts of disseison. It depends upon the intent with which they are done and their notoriety. The law will not presume that one tenant-in-common intends to oust another. The entry and possession of land of one co-owner will ordinarily be held to be for the benefit of all,' vide Balaram Guria v. Syama Charan Mandal 60 Ind. Cas. 298 : 38 Cri.L.J. 344 : 24 C.W.N. 1057,' A co-sharer in possession can convert his possession into adverse possession. This adverse possession so begun cannot be stopped by the other co-sharers merely by affirmations that they are co-sharers,' vide Akbar v. Tabu 22 Ind. Cas. 805 : 105 P.L.R. 1914 : 61 P.W.R. 1914 : 45 P.R. 1914. 29 B. 800 : 1914 7 Born. L.R. 252. 'To constitute an adverse possession as between tenants-in-common there must be an exclusion or an ouster,' vide Gangadhar v. Parashram 29 B. 800 : 7 Born. L.R. 252.

24. On a consideration of the law applicable to the case of possession by one co-owner of particular plots in the Samudayam property, which requires unequivocal and open acts of adverseness necessary for the said co-owner to prescribe ownership in himself, I am of opinion that facts have been proved in this suit, as shown by my statement of them in the preceding paragraphs, which would entitle the 22nd defendant to claim prescriptive title over the properties in question, namely, his acquisitions in item No. 1 in the present suit, known as Muttadi Padugai. I find accordingly.

25. This Second Appeal and the Memo. of Cross-Objections filed by the 13th respondent coming on for hearing on Friday and Thursdays, the 16th and 22nd days of December 1921, after the return of the findings by the Additional Subordinate Judge of Tanjore, in pursuance of the order of this Court, dated 3rd May 1921, and the case having stood over for consideration till Thursday the 12th day of January 1922, the Court (Oldfield and Ramesam, JJ.) delivered the following

26. Judgment.--The finding of the lower Appellate Court on the first question remanded, that 22nd defendant acquired the characters of a mirasidar or co-owner in virtue of the purchases relied on by him, must' be accepted, since no objection is taken to it. To the correctness of the argument based on it by the lower Appellate Court further reference will be made.

27. The second finding of the lower Appellate Court is that 22nd defendant has completed a prescription for ownership appropriate to his legal character; and this cannot be accepted, if only because it is based on five considerations, of which three possess no substance. For the issue by the melwaramdars of pastas to 22nd defendant alone, the making of improvements by him on the land in his occupation and the language used by 1st and 2nd defendants in their written statement as to their possession of land, with which he is not concerned, afford no evidence of the nature of his enjoyment or that it has been adverse to his co-owners, since the latter would not be bound by the conduct of the melwaramdars or of 1st and 2nd defendants and had no reason for objecting to improvements, which would pass with the land and, if it ever had to be surrendered, would have to be surrendered with it. The two other grounds on which this finding is based, the attitude of 22nd defendant's father in his litigations with all or some of the mirasidars and that of 22nd defendant and his vendor, Velayudha Chetti, to them in respect of part of item No. 1 of: the suit property, no doubt might legitimately have been considered by the lower Appellate Court. But they are not conclusive; and, although it could have reached its finding with regard to them alone, there is nothing to show that it would have done so. For these reasons, therefore, the finding cannot be accepted.

28. In remanding the case a second time for a finding in the light of the foregoing we take the opportunity to deal with two other points, on which argument has been based. Firstly, the lower Appellate Court has observed that the documents evidencing enjoyment under Karaiyedu tenure range down to 1894 and its further statements suggest that it held in favour of the cessation of that tenure in that year. But, firstly, the documents in fact range down to only 1884 and, next, it is a question whether the tenure ceased with them or later; for, secondly, it does not follow that it ceased, when they were executed. The date of its cessation is clearly most important, since, if the tenure was in force at the date of 22nd defendant's entry or his vendees, that fact would be material to the decision as to the character of his possession, as supporting the plea of prescription.

29. Lastly, it is urged that the special rule as to the evidence necessary to establish prescription between co-owners is not applicable to 22nd, defendant, who is not a co-owner, but only a transferee of some co-owners' interests and that it is unnecessary for such a transferee to establish the exclusion or denial of title to the knowledge of his opponents, which would as between co-owners ordinarily be essential. This is supported by reference to Bhavrao v. Rakhmin 23 B. 187 : 12 Ind. Dec. 91, and the conclusion that the possession of a purchaser from a co-sharer of only the qualified right to an assignment of the land in his vendor's possession, if that be possible at a partition, will prescribe in virtue of his bare possession, 'adverse possession depending on the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested, whether in a single person or in many jointly;' and the opinion was expressed later that it did not matter whether the transferees in possession, who were before the Court, knew of the property being held in co-ownership or not, although the fact that they were transferees had been regarded in the judgment as important with reference to their knowledge of their real rights. This is no doubt stated generally, but it is possible that it was influenced by the local considerations, which also are referred to. Certainly, it goes beyond the earlier authority relied on Ganesh v. Ramchandra 20 B. 557 : 10 Ind. Dec. 987, since there the entry into possession was under a purchase in a Court sale of which the other co-sharers were presumably aware and the impossibility of harmonious relations between the parties is expressly referred to. Bhavrao v. Rakhmin was accepted as good law by Beaman, J., in Bhaiji Shamrao v. Hajimiya Mohamad 15 Ind. Cas. 500 : 14 Bom. L.R. 814. But it was construed by Hayward, J., as deciding only that a transferee's knowledge of the defect in his title did not prevent his prescribing for the right conveyed by his transfer and as raising no question as to the necessity for knowledge on the part of the true owner that his right was denied or interfered with. That, however, is not enough to explain the case or the statement in connection with an assumption that the transferees knew of the coparcenary character of the property that 'a person coming in under a title, which he knows to be defective, is not by a reason of his knowledge deprived of the benefit of the law of prescription,' the general rule requiring twelve years' possession of the ordinary character being apparently in question. For that statement, if it is to be understood as generally as its wording involves, is clearly opposed to decisions of the Judicial Committee, which are not referred to in any of the Bombay cases, Watson and Go v. Ramchund 18 C. 10 : 17 I.A. 110 : 5 Bar. P.C.J. 685 : 9 Ind. Dec. 7 and Lachmeswar Sing v. Monowar Hussain 19 C. 253 : 19 I A. 48 : 6 Sar. P.C.J. 133 : 10 Ind. Dec. 614, as well as Varada Pillai v. Jeevaratnam-mal 53 Ind. Cas. 901 : 48 M. 244; (1919) M.W.N. 724 : 10 L.W. 679 : 24 C.W.N. 846 : 38 M.L.J. 818 : 18 A.L.J. 274 : 2 U.P.L.R. 64 : 22 Bom. L.R. 444 : 46 I.A. 285, the two first defining the point at which the Court will restrain the enjoyment of one co-sharer as interfering with the rights of the others and the last dealing directly with prescription. It is to be observed that in each of these cases the prescribing party was the transferee of a co-sharer, not a co-sharer or his descendant, being in the first a lessee, in the second a purchaser and in the third a beneficiary under a Will, and that, although this was not stated expressly, his knowledge of his rights and those of the other co-sharers was assumed. But the material fact, and it is irreconcilable with the decision in Bhavrao v. Rakhmin 23 B. 187 : 12 Ind. Dec. 91, is that not only a possession by one co-sharer, but also an exclusion of the others or a denial of their title to their knowledge, was held essential before such possession could be restrained or regarded as adverse. There is, accordingly, no justification for the general statement that a tranferee in possession of common property is subject to no special restriction in prescribing against co-sharers other than his transferor. It can be Said only that, if he prescribes as a co-sharer, a matter to be decided with reference to the terms of his transfer and the circumstances, he must prove exclusion or denial of title; but that, in the event of his having neither actual nor constructive notice of the common character of the property, he will be on the same footing as any ordinary transferee with an independent, but invalid, title or with none. It will be for the lower Appellate Court in dealing with 22nd defendant's case of prescription to decide to which of these alternatives it is subject.

30. We accordingly remand the case for a rehearing and submission of revised findings in the light of the foregoing. Findings will be submitted in six weeks. Seven days will be allowed for filing objections.

31. In pursuance of the order contained in the above judgment the Additional Subordinate Judge of Tanjore submitted the following

32. Finding : In obedience to the order of the High Court, dated 12th January 1922, in S.A. No. 73 of 1920, I Beg to submit the following revised finding on issue 2, namely, whether the 22nd defendant has completed any prescription for ownership appropriate to the character which he is found to possess?

33. 2. The 22nd defendant was found by me under issue 1 to possess the character of a co-owner or a mirasidar in respect of his purchase of the item and that finding has been accepted by the High Court.

34. 9. I find that the Karaiyedu tenure in the village had certainly ceased before the date of the 22nd defendant's father's earliest sale-deed. Such a tenure was not known to have existed after 1879 according to the evidence of Mr. K. Kaliyanasundaram Ayyar (Exhibit LV) already referred to. Such a tenure could not have existed after 1848 (the date of Exhibits M and C-3). With reference to the terms contained in the sale-deeds obtained by the 22nd defendant's father and by the the 22nd defendant himself, and with reference to the litigations in O.S. Nos. 435 of 1890, 126 of 1891 and 456 of 1892 and in consideration of the large number of mirasidars who contested the plaintiffs in these suits and of a large number of other mirasidars who had taken part in the sale-deeds of the 22nd defendant's father and who must have known of the purchase and the possession of the plots by the 22nd defendant's father in the village, I find that the 22nd defendant has completed prescription for ownership against all mirasidars, directly as against those who were parties to the litigations and constructively against the other mirasidars. I also find that the 22nd defendant's father and the 22nd defendant had nothing to indicate to them at the time of their purchase that the properties were in common holding.

35. This Second Appeal and the Memo. of Cross-objections filed by the 13th respondent coming on for hearing on Friday, Tuesday, Wednesday and Wednesday the 17th, 21st, 22nd and 29th days of November 1922, respectively, after the return of the revised findings from the Additional Subordinate Judge of Tanjore, and the case having stood over for consideration till this day, the Court delivered the following.

Oldfield, J.

36. The lower Appellate Court's finding is in 22nd defendant's favour, and in accepting it, we need deal in detail with one question only, that of res judicata, since no objection of any weight has been taken to it on other grounds.

37. The previous adjudication relied on is evidenced by Exhibits T., A. and R., the judgments in O.S. No. 367 of 1900 and in first appeal therein and the decree in second appeal; and no doubt in our first order of remand we said that the plea of a previous partition was concluded by them against 22nd defendant. We did not, however, refer to the plea of prescription, which is now in question.' That plea is, it is said, now inadmissible, because 22nd defendant's prescription according to the finding before us was complete in 1883 and could have been, but was not, relied on by him in the previous proceedings. The answer is that, whatever the effect of Exhibits T., A. and E. on 22nd defendant's right to plead a title acquired before the beginning of that litigation, they do not affect his right to rely now on a subsequent period of adverse possession, which was then incomplete or debar him from proving what happened before that period, as explaining the nature of his connection with the property during it.

38. The remaining argument for consideration should have been advanced, before the finding was called for, and can be considered now only with reference to the facts found and as raising a question of law, It is that 22nd defendant cannot, as a co-owner, claim part of the estate in co-ownership in virtue of prescription for that part alone. This is argued on the strength of the decision in Kumarappa Chettiar v. Saminatha Chettiar 52 Ind. Cas. 470 : 42 M. 431 : 1919 86 M.L..J. 612 : (1919) M.W.N. 828 and particularly the dictum of Seshagiri Ayyar, J., therein, that 'possession of part of the property' by some of its co-owners would save limitation as regards the rest of the property' as against the others, that of course stating the law from the stand-point of the then defendants, who correspond with the present appellants. As this dictum is the sole support of the argument attempted, it is necessary to ascertain its exact scope by reference to its context. The plaintiffs in Kumarappa Chettiar v. Saminatha Chettiar 52 Ind. Cas. 470 : 42 M. 431 : 36 M.L.J. 612 : 1 (1919) M.W.N. 328 claimed in the alternative (l) possession of certain items on the ground that their vendors, 1st and 2nd defendants, had either obtained them in partition or been in exclusive and adverse possession of them for more than twelve years, or (2) partition and delivery of their vendors' share in them. In appeal, however, nothing was said of 1 and 2 defendants' title under the partition. The other defendants, representing other branches of 1 and 2 defendants' family, admitted plaintiffs' right to division and delivery of shares in the items, but on the remaining question as to plaintiffs' or 1 and 2 defendants' prescription for the whole of those items they pleaded Article No. 127, Schedule I of the Limitation Act. It was in discussion of this plea that the dictum of Seshagiri Ayyar, J. now relied on, occurred and that Wallis, C.J., said : 'If the property was undivided and Article No. 127 is applicable to bar the plaintiff, there must be exclusion from the whole of the joint family property and exclusion from the suit property only will not do.' With that part of the decision, however, we are not concerned, and it is unnecessary for us to express an opinion regarding its correctness or the extent to which it is really entailed by the authorities relied on by the learned Judges. For, in the present case, the suit property is not and never was the joint family property, to which alone Article No. 127 statedly applies. In fact in Kuma rappa Chetty v. Saminatha Chetty 52 Ind. Cas. 470 : 42 M. 431 : 1919 86 M.L.J. 612 : 1 (1919) M.W.N. 828 the argument was conducted on the assumption that the joint family in question had become divided in status and the judgments dealt also with the alternative that, although the property had belonged to a joint family, the defendants' interest in it was at the date of suit that of tenants-in-common. On that alternative the learned Judges did not decide whether Article No. 127 would apply, holding that, even if (as 22nd Defendant now contends) the proper Article was No. 144, the plaintiff's claim to possession of the whole items must fail. But, and this is the important point for our present purpose, WALLIS, C.J., reached that conclusion, not on the short ground, which would have been open to him, if appellants' contention here were sustainable, that prescription for a part only of the common property was useless, but because 'there was no sufficient evidence of ouster,' meaning evidently, no evidence of such aggravated exclusion as is required between co-tenants; and, although Seshagiri Ayyar, J., referred directly only to the effect of the decisions he had considered, not to any finding of fact to which he applied them, this part also of his judgment is reconcilable with the interpretation now suggested of the case. Shortly, the learned Judges, so far as their dicta support the present appellants, were dealing with what is not at present in question, property which was or had been that of a joint family; and there is nothing in their judgments to impair the application to the common property in dispute before us of the principle, on which the leading cases of Watson v. Ramchand and Lachmeswar Singh v. Monowar Hussain 19 C. 253 : 19 I.A. 48 : 6 Sar. P.C.J. 133 : 10 Ind. Dec. 614 were decided, that prescription for part of such property is not impossible, but must be established by evidence, not only of adverse possession, in the ordinary sense of that term, but further of assertion of title and exclusion, irreconcilable with the existence of any tenancy-in-common. We are accepting the finding that such denial of title and exclusion is proved in the present case. The appellant's objections failing, the conclusion must be in 22nd defendant's favour.

Ramesam, J.

39. The appellant has filed objections to the finding recorded by the Subordinate Judge (on 25th August 1921) on the third of the issues sent down by him. He says the Subordinate Judge omitted, by a slip, to deduct half a pangu out of Namasivayam Pillai's share. This is not admitted by the other side and it is not clear that any slip was made by the Subordinate Judge. The finding is one of fact and is accepted.

40. The decree of the lower Appellate Court will, therefore, be modified as follows :

41. 1. The appellants will be entitled to 4 pangu in addition to the pangus allotted in the lower Appellate Court.

42. 2. That the 22nd defendant be and hereby is, allowed to retain the lands (1 veli 16 mahs., and 44 kulis) decreed in O.S. No. 388 of 1884, O.S. No. 456 of 1892 and O.S. No. 126 of 1891 in satisfaction of 11 13/16 pangus.

43. 3. That the 22nd defendant is entitled to l 11/32 pangus in addition, to be allotted to him in general partition.

44. 4. That the remaining lands (the lands other than the 1 veli, 16 mahs., and 44 kulis) should be divided into 19 91/192 shares and the shares to which the parties are found entitled are to be allotted to the respective parties.

45. In the Second Appeal, the appellants will pay the costs of the 22nd defendant. In the Memorandum of Objections, each party will bear its own costs except that the 22nd defendant will pay the costs of the 8th respondent.


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