G. Ramanujam, J.
1. The plaintiff is the appellant. He filed, a suit for declaration of his title to the suit properties and for recovery of possession of the same from defendants 1 and 2. His case was that he had purchased the suit property from one Govindammal under the sale deed Exhibit A-1 dated 4th September, 1965, who had in turn got the property from her paramour, Munuswami Naidu, under a will dated 20th December, 1935, and that his vendor Goviadammal had been in possession and enjoyment of the property on the basis of the said will. It is also the plaintiff's case that taking advantage of the sale deed executed by Govindammal's elder son Ethiraj in their favour under Exhibit B-6 dated 19th August, 1961, the defendants have entered into possession of the 'property and have put up structures thereon and that therefore he was constrained to file the suit for recovery of possession.
2. The defendants resisted the suit contending that their vendor Ethiraj got the suit property from his father Munuswami Naidu, that under Exhibit B-6 he had conveyed his interest in the suit property to them, and that ever since the date of Exhibit B-6 they are in possession of the properties.
3. The trial Court accepted the plaintiff's case that the suit properties originally belonged to Munuswami Naidu, that later the same has been bequeathed to Govindammal under the Will dated 20th December, 1935 and that therefore, the plaintiff has acquired valid title under the sale deed Exhibit A-1 executed by Govindammal in his favour. In that view, it decreed the plaintiff's-suit.
4. On appeal, the lower appellate Court however, took a different view.. It also agreed with the trial Court that Muruswami Naidu had executed a will in favour of Govindammal on 20th December, 1935, but as the original of the will had not been producted into Court and the explanation for non-production of the original will given by the plaintiff and his vendor Govmdammal (P.W. 2) was far from satisfactory, and that, therefore, the plaintiff was not entitled to let in secondary evidence regarding the terms of the will. The lower appellate Court, therefore, felt that the terms of the will not having, been proved, the plaintiff has not proved his vendor's title to the suit property by virtue of the will said to have been executed by Munuswami Naidu on 20th December, 1935. Having held that the plaintiff has not established his title, to the suit property through Govindammal the lower appellate Court dismissed the plaintiff's suit.
5. In this second appeal, it is urged on behalf of the appellant that the lower appellate Court has not properly considered the evidentiary value of Exhibits A-6 and A-7 the sale deeds executed by Govindammal, plaintiff's vendor, in relation to the other properties wherein reference has been made to the existence of the will dated 20th December, 1935,. executed by Munuswami Naidu. As. already stated the lower appellate Court has proceeded on the basis that Munuswami Naidu had in fact, executed the Will dated 20th December, 1935. But the real question is whether under the will the suit property has been bequeathed to Govindammal. The mere proof of the existence of the will cannot automatically lead to the conclusion that Govindammal got the suit property under the said will. Unless the terms of the will had been proved either by producing the original or by secondary evidence, Govindammal's title to the suit property cannot be upheld.
6. The learned Counsel for the appellant also says that the lower appellate Court has not considered the evidentiary value of Exhibits A-8 and A-9 which are chitta extracts for, Fasli 1373 and Fasli 1374 showing the enjoyment of the suit properties by the plaintiff's vendor Govindammal and that her enjoyment of the suit properties can only be on the basis that she got the property under the will in question. But having regard to the fact that Exhibits A-8 and A-9 have come into existence long after Govindammal's son Ethiraj had executed the sale deed Exhibit B-6 in favour of the defendants in relation to the suit property it cannot have much evidentiary value. If there is any contemporaneous document filed to show that Govindammal became possessed of the suit properties at or about the time of the death of Munuswami Naidu, that can be taken as a relevant circumstance to show that under the will of Munuswami, Govindammal had acquired the property. I am, therefore inclined to agree With the view of the lower appellate Court that there is no acceptable evidence in this case to show that the plaintiff's vendor had a valid title to the suit property which she purported to convey under Exhibit A-1.
7. The learned Counsel for the appellant then contends that on the principle laid down in Subbaiya v. Mohamed Mustapa Maracayar : (1917)32MLJ85 , and Nair Service Society v. Alexander : 3SCR163 , Govindammal's prior possession of the suit property is sufficient to enable her or her vendee to recover possession of the property from the defendants who have not also established that they had acquired valid title to the suit properties. What in effect the learned Counsel contends is that even though Govindammal had no title to the suit property, by virtue of her anterior possession she is entitled to recover possession from the defendants who have not acquired title to the suit properties and who are merely trespassers.
8. It is true that the decisions referred to above laid down that the prior trespasser is entitled to recover possession of the property from a person who has. subsequently trespassed on the property, and that the Court is bound to protect the possessory title of the prior trespasser.
9. The learned Counsel for the respondent points out that the plaintiff has not pleaded her possessory title that the relief for recovery of possession is not based on such a title, and that therefore the appellant should not be allowed to claim recovery of possession on the basis of possessory title. But in Karuppannan Ambalam v. Sundararaja Aiyar : AIR1940Mad71 , the plaintiff based his suit on title. But after failing to establish his title he sought the relief of possession on the strength of his possession alone. The Court held that in the circumstances, a decree can be passed on the strength of plaintiff's possession though it had not been specifically pleaded and made a ground of relief.
10. Therefore the question is whether the plaintiff or his vendor had established their possessory title so as to entitle them to seek recovery of possession of the properties from the defendants.
11. In this case, there is no evidence as to the actual user to which the land has been put, and as a matter of fact even the trial Court has held that the suit property is a vacant site situate between the backyard of several houses and the river Vegavathi, that it is unfit for cultivation and that it can be enjoyed only as a house site. The trial Court also finds that the suit property has been put to actual use only by the defendants after they had purchased the property under Exhibit B-6 and before that it Was only a vacant site. In such a case, the normal presumption is that possession follows title.
12. In this case, the plaintiff has already been found not to have established his title. In the circumstances of the case, therefore, it cannot be said that either (the plaintiff or Govindammal have established their actual possession of the Suit properties, at any time after 1935 for before 1961.
13. In this view, the appellant's claim that by virtue of the possessory title of his vendor, he is entitled to succeed in the suit cannot be upheld. The second appeal, therefore, fails and it is dismissed. There will be no order as to costs. No leave.