Venkataramana Rao, J.
1. The suit out of which this Second Appeal arises was instituted by the plaintiff for the recovery of possession of item 1 of the plaint schedule. The plaint comprises two items of properties namely item 1 being Kanancheri paremba and item 2 being Nata paremba which admittedly belonged in jenm to Peruvianayan Thazhekunnath tarwad of defendants 3 to 6. By Ex. 1 dated 16th March 1880 the said properties were leased by its karnavan to Mathancheri Kannan and he obtained a renewal from the succeeding karnavan by Ex. A dated 5th October 1892. In or about 1895 the plaint properties were in pursuance of a rezinamah set apart by the then karnavan for the maintenance of Lakshmi Amma and her descendants who form a tavazhi of the main tarwad and possession was delivered to her and she was collecting the rents from the lessee Kannan. On 2nd May 1900 Lakshmi Amma gave a melcharth to one Kumhammed Kutti with authority to recover possession of the property from Kannan after paying off the amount if any due to him and on 4th January 1908 Kunhammad Kutti obtained a decree for arrears of rent against Kannan on the strength of the said melcharth and subsequently Kunhammad Kutti assigned all his rights under the melcharth to Kannan himself as per Ex. 4 dated 13th March 1912 and Kannan attorned to Lakshmi Amma and continued to pay rent to her. Kannan's leasehold rights were purchased in execution of a decree obtained by one Chokru on 29th October 1920 and Chokru assigned his rights to defendant 1 who has since the date of purchase continued to pay the rent to Lakshmi Amma and after her death to defendants 3 to 6. In the meanwhile on 17th January 1907 the karnavan of the Thezhekunnath tarwad to whom the properties belonged in jenm as aforesaid conveyed the said properties and some other items of property to one Akkal Kannan Nair for a consideration of Rs. 2,500. The present plaintiff 1 obtained a mortgage-decree against Kannan Nair in O.S. No, 886 of 1912 on the file of Nadapuram Court, had the rights of Kannan Nair brought to sale and purchased them himself. The sale certificate was issued to him on 18th December 1922. On 25th August 1927 he issued a registered notice to defendant 1 demanding surrender of possession of plaint item 1 but defendant 1 declined to do so stating that he was holding the property under defendants 3 to 6 and denied the title of the plaintiff and his right to recover (possession of the same. Thereupon the plaintiffs have instituted this suit against defendant 1 and defendant 2 who is a sub-tenant under him and defendants 3 to 6 who belong to the tavazhi of Lakshmi Amma for recovery of possession of item 1.
2. The defence of the contesting defendants is that the Karnavan had no right to sell the properties of Akkal Kannan Nair in derogation of the maintenance arrangement entered into by him settling the property on defendants 3 to 6, that the said sale was in any event fraudulent and not binding on them, that neither Akkal Kannan Nair, nor plaintiff 1 nor plaintiffs had at any time possession of the properties and that in any event the plaintiffs' title to the property must be deemed to be barred by limitation and adverse possession. The learned District Munsif who tried the suit was of opinion that Ex. E, the sale deed in favour of Akkal Kannan Nair by the karnavan was for necessary purposes of the tarwad and therefore binding on defendants 3 to 6, but he negatived the plaintiff's claim on the ground that the tenants of plaint item 1 including defendant 1 have not at any time attorned to Akkal Kannan Nair but have been in possession under the maintenance holders Lakshmi Amma and her descendants defendants 3 to 6 and the possession of defendants 3 to 6 was adverse to the plaintiff and therefore his right to recover possession of the properties was barred by adverse possession.
3. On appeal the learned District Judge reversed the decision of the District Munsif. He held that the sale in favour of Akkal Kannan Nair was binding on the tarwad. He also found that the property was allotted to the maintenance holders in 1895 and ever since was being enjoyed by them in that the tenants held under them and paid rent to them. He further found that neither Akkal Kannan Nair nor the plaintiff subsequently obtained an attornment of the tenant or collected rent from him. But he however held that the tenancy of Kannan under the lease of 1892 must be deemed to have continued and not put an end to and his possession could not be adverse as against the plaintiff and therefore the plaintiff's rights were not barred and he was entitled to recover possession.
4. It is contended by Mr. Nambiar on behalf of defendants 3 to 6 that the view of the learned Judge on the question of limitation is wrong and that though the sale in favour of Akkal Kannan Nair, may be binding on the tarwad, yet the sale must be deemed to be subject to the maintenance grant in favour of defendants 3 to 6 and the plaintiff's rights could not therefore prevail against the rights of defendants 3 to 6. There is authority for the position that where land is given in lieu of maintenance to the junior members of the tarwad by its karnavan it cannot be set aside by the succeeding karnavan. It is binding on him and a suit for possession thereof cannot be maintained unless the arrangement is set aside and some other suitable arrangement in lieu thereof is made : Vide Ramaswami Pattar v. Gopalan : (1917)32MLJ97 . On this ground the lessee from the Karnavan was not entitled to recover possession from the maintenance holder of the land delivered to him under such arrangement. The principle of this decision was also approved in a later case in Kunhahomed v. Sara Umma : AIR1925Mad1158 , but the question still remains whether it prevents the karnavan from alienating the property for necessary purposes of the tarwad, and if so, what is the effect of that alienation upon the maintenance grant I think it is unnecessary to decide this question in the view that I am taking on the question of adverse possession. On the findings of the learned Judge it seems to me that the plaintiff's suit is barred by limitation and adverse possession of defendants 3 to 6. On the date of sale in favour of Akkal Kannan Nair, the karnavan of the tarwad, was not in possession of the suit property. It was in the possession of the tavazhi of Lakshmi Amma and Kannan, who originally was a tenant of the tarwad, and subsequently became the tenant of the tavazhi.
5. It was therefore incumbent upon Akkal Kannan Nair to reduce the property to his possession or call upon the tenant to attorn to him, but he never did so. The possession of the tavazhi through its tenant Kannan must be deemed to be adverse from the date of sale. Akkal Kannan Nair never reduced the property to possession by calling upon the tenant to attorn to him or otherwise. The tenant continued to pay rent to Lakshmi Amma. So from 1907 until 1927 for a period of over 20 years defendant 1 was paying rent to Lakshmi Amma and therefore possession of the property through the tenants continued with the tavazhi without any interruption and there was thus an open, and adverse enjoyment of the property for over a period of 12 years by the reception of rent through Kannan and afterwards Chokru and defendant 1, and the plaintiff's rights have become barred either under Article 137 or under Article 144, Lim. Act, whichever article is taken. In Ummaya v. Musaliyar 1927 Mad 1157 the karnavan of a Malabar tarwad conveyed certain property in favour of one of its tavazhi for its maintenance. The property was under a lease in the possession of a tenant. The karnavan asked the tenant to pay rent to the tavazhi and soon after he died. The succeeding karnavan ignored this maintenance arrangement and collected the rent from the tenant himself and subsequently conveyed the property to a different tavazhi for its maintenance and asked the tenant to pay the rent to the latter tavazhi. The tenant accordingly attorned to them. The first tavazhi never collected any rent from the tenant nor took steps to take possession of the land. After 12 years from the date of the grant they filed a suit to recover possession. It was held their rights were barred by limitation and adverse possession. Ramesam, J., observed as follows:
The relation of landlord and tenant has not been created between the plaintiff and Chathu (tenant). That being so, the possession of the tarwad from October 1900 to September 1902 and of its assignee defendant 4 (2nd tavazhi) from September 1902 up to the date of suit is adverse to the plaintiff and the plaintiff's title is extinguished by prescription.
6. This decision exactly covers the present case. It is contended by Mr. Pocker that defendant 1 being a tenant of the tarwad under the sale executed in plaintiff's favour, he was entitled to recover possession only on payment of the amount due to him; and under Section 5, Malabar Compensation for Tenant's Improvements Act, the tenant in possession of the land must be deemed to be a tenant and there could be no adverse possession by the tenant against the landlord. In the first place, on the date of sale there was no tenant of the tarwad in possession. Further Section 5 applies where there is a relation of landlord and tenant subsisting between the parties. The statement in the sale deed only indicates that before the vendee could recover physical possession of the property he was bound to pay compensation to the tenant. On the date of sale he was certainly entitled to possession and he should have reduced the property to his possession by asking the tenant to attorn to him, or if he failed to do so by ejecting him. The fact that he can recover physical possession only on certain conditions is not the same thing as that he was not entitled to possession. On the date of sale his vendor was certainly entitled to possession as the tenant's lease had expired. Therefore by the mere fact of sale no relationship of landlord and tenant was created between Kannan and Akkal Kannan Nair in this case and the plaintiff is not protected either by Section 5, Malabar Compensation and Tenant's Improvements Act, or by the terms of the sale deed in favour of Akkal Kannan Nair. In the result I reverse the decree of the learned District Judge and restore that of the District Munsif with costs throughout. (Leave refused).