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Mukambika Shettithi and anr. Vs. Shiddaya Shetti and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1924Mad116; 75Ind.Cas.613
AppellantMukambika Shettithi and anr.
RespondentShiddaya Shetti and ors.
Cases ReferredSomasundarum Chetty v. Vadivelu Pillai
Excerpt:
practice - suit for possession based on ownership--title by adverse possession found by first court--no plea of prejudice on appeal--appeal, second--adverse possession, plea of, not definitely set up in the plaint, whether can be urged. - .....and 8. defendants nos. 7 and 8 were not original parties but subsequently added as parties to the present suit and the plaint was accordingly amended and plaintiff based his right on ownership also. it is urged for defendants nos. 7 and 8 that this only arose in 1916 when the artha-mulgeni interest was assigned to plaintiffs by certain members of the ka (sic) abettu ma (sic) jeyas family who had held the land since 1887 at least. it is said that this title by adverse possession to the ancestors of defendants nos. 7 and 8 ought to have been distinctly pleaded and that defendants nos. 7 and 8 have been prejudiced by this omission. it is to be remarked that by 1919, the date of the present suit, the plaintiff had acquired title by the assignment of 1916, and that long before this the.....
Judgment:

1. In this appeal it is contended that the question of adverse possession has not been properly pleaded or considered. The plaintiff at first based his title on purchase of mull right which is said to refer to a Judicial Decision in 1897 whereby the suit property was declared to belong to the ancestors of defendants Nos. 7 and 8. Defendants Nos. 7 and 8 were not original parties but subsequently added as parties to the present suit and the plaint was accordingly amended and plaintiff based his right on ownership also. It is urged for defendants Nos. 7 and 8 that this only arose in 1916 when the artha-mulgeni interest was assigned to plaintiffs by certain members of the Ka (sic) abettu Ma (sic) jeyas family who had held the land since 1887 at least. It is said that this title by adverse possession to the ancestors of defendants Nos. 7 and 8 ought to have been distinctly pleaded and that defendants Nos. 7 and 8 have been prejudiced by this omission. It is to be remarked that by 1919, the date of the present suit, the plaintiff had acquired title by the assignment of 1916, and that long before this the prescriptive title of the Kanabettu family had accrued. The Munsif went very carefully into the facts and came to the conclusion that plaintiff and his predecessors had been in possession of the suit property through their chalgeni tenant (the first defendant) for over the statutory period and that defendants Nos. 7 and 8 were never in possession. On appeal these defendants did not plead that they had been prejudiced or taken by surprise, or that plaintiff's title by prescription ought not to have been considered by the District Munsif. The lower Appellate Court gave judgment to the same effect as the District Munsif. There is no evidence that any objection was taken at the trial as to the consideration of these facts. We think the plaint sufficiently raises the question of plaintiff's title and that the lower Courts were justified in considering the steps by which plaintiff's title had been completed. The plaintiff was entitled to rely on his assignment of 1916 as to the ownership in that title. Mr. Sitarama Rao relies on the case of Soma-sundarum Chetty v. Vadivelu Pillai 31 M. 531 : 4 M.L.T. 344 for authority that a declaratory decree cannot be passed on a title neither stated in the plaint nor raised by the issues and a plaintiff who simply alleges title cannot succeed on the basis of title by adverse possession. This case follows Shiro Kumari Debi v. Govind Shaw Tanti 2 C. 418 : 1 Ind. Dec. 556 which was distinguished in Sundari Dassee v. Mudhoo Chunder Sircar 14 C. 592 : 7 Ind. Dec. 392 which was a case (as here) for possession upon proof that plaintiff was entitled to the land. The present case is closely analogous to the later Calcutta decision. Somasundarum Chetty v. Vadivelu Pillai 31 M. 531 : 4 M.L.T. 344 has no application. We dismiss this second appeal.


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