1. The finding is that the 1st defendant was let into possession on condition of doing prohit service, and that since 1880, the 1st defendant has ceased to perform prohit service. The mere fact that the 1st defendant has ceased to perform service is not sufficient to make the 1st defendant's possession adverse--Komargowda v. Bhimaji Keshiv 23 B. 602.
2. Even as to the non-performance of service, we have to point out that the 1st defendant in his written statement alleged that he was performing prohit service, an allegation which the Subordinate Judge appears to have overlooked. We must, therefore, ask the Subordinate Judge to find whether the possession of the 1st defendant is adverse to the plaintiffs and, if so, when it became adverse.
3. The finding should be submitted within 6 weeks, and 7 days, will be allowed for filing objections.
4. In compliance with the above judgment, the Temporary Subordinate Judge of Madura (West) submitted the following
1. It has been found in the case that the 1st defendant got into possession through Narayana Vathiar, who again was put in possession on condition of doing prohit service. It is also found that the 1st defendant did prohit duty and enjoyed the land up to about 1880; subsequent to it the allegation of the plaintiffs is that they cultivated the land and gave the masool to 1st defendant for doing prohit work and that they put 1st defendant in possession in 1892. But both these allegations are found against the plaintiffs. So that either the 1st defendant or 6th defendant must have been in possession since 1880. The 1st defendant bought the land from the 6th defendant in 1891 and his evidence is that he enjoyed the land even prior to it, that is, since the death of 6th defendant's father (who died about 30 years ago) in consideration of the amount of Rs. 50 which he lent for 6th defendant's father's funeral expenses. It, therefore, follows that the 1st defendant continued in possession since 1880, and his possession prior to it was derived from the mahajanams on condition of doing prohit service. The 1st defendant denies having done duty as prohit subsequent to 1880 and denies he enjoyed the land for doing such service. He, however, admits in his written statement that he did prohit service subsequently, but he wants it to be made out that he did it not because he enjoyed the land but on account of friendship and relationship. The question, therefore, is when did the possession of the 1st defendant become adverse. There is nothing to show that the 1st defendant asserted any title to the land irrespective of his doing the prohit service or that the plaintiffs or mahajanams had any notice of knowledge of it. It is more natural to treat his possession subsequent to 1880 as continuous with his possession prior to it and this coupled with his doing prohit service subsequently leads to the inference that his possession was not or could not be adverse; at best his possession can be said to be adverse only since 1891 when ho purchased the land from the 6th defendant. This suit is filed within 12 years after that date and so could not be barred.
2. 'The Suit was originally brought by some of the plaintiffs and it was only in September 1904 that plaintiffs obtained permission under Section 30, Civil Procedure Code to sue on behalf of all the villagers and subsequently supplemental plaintiffs came in and joined as co-plaintiffs'. So it is argued that the case is clearly barred under the ruling in the case of Imam-ud-Din v. Liladhar 14 A. 524. This assumes that registration is notice. It has been held in the case of Shan Maun Mull v. Madras Building Company 15 M. 268, that registration is not of itself notice. There is no evidence that the plaintiffs had any notice of the sale-deed to the 1st defendant. One attestor (Seetharama Aiyar) has described himself as a mahajan. He is not examined in the case and there is nothing to show who he is; and no value can be attached to that attestation. There is, therefore, nothing to show that 1st defendant's possession was or can be deemed to be adverse to the plaintiffs'. There is no evidence that anything was done by the 1st defendant to indicate to the plaintiffs that he holds possession adversely for 12 years prior to the time that the supplemental plaintiffs were brought on record.
3. I must, therefore, find that the possession of the 1st defendant is not adverse to the plaintiffs.
This second appeal coming on for final hearing after the return of the above finding, the Court delivered the following
5. There is no legal objection to the finding which we accept. We reverse the decree of the Courts below and give the plaintiffs a decree with costs throughout for possession as prayed with mesne profits--to be determined by the District Munsif--from the date of plaint till delivery of possession or three years from this date.