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 partible. 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 Exs. 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 right 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 velis 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 prescribed 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 Karaiyeedu tenure of the village. This tenure was not referred to at all in the pleadings and it appears to hare 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 re-distributed among the mirasidars at intervals. It is clear that when a suit is brought for the partition of the village lands and 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 Karaiyeedu tenure consists; and accordingly the only importance for our present purpose of the allegations as to Karaiyeedu is that they may, if they are established, afford an explanation of the origin and character of the separate possession, on which the 22ad 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 in 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 thorn as parts of the common property and with the 22nd defendant's acquisition 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 strange 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; bat, 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 mile, 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:
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?
Secondly.--Whether the 22nd defendant has completed any prescription for ownership appropriate to the character, which he is found to possess?
8. AS we are calling for a finding, with reference to adverse possession, we do not at the 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 respects, 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.
9. 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 Memorandum of Cross-objections. In the appeal, there is firstly a claim based on the words alleged to be a proper interpretation of Exs. 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 1/3rd to the 1-15/.16 share already allowed by the Subordinate Judge to the 117th Defendant.
10. Next, the 22nd Defendant, in his Memorandum of Cross-objections, has claimed an addition of 1/32 to his share, on the ground that Ex. N. has been misread. This is not disputed. His share will be increased by 1/32.
11. The other ground in the Memorandum which is argued relates to the share of the 6th Plaintiff. This has eventually not been pressed before us.
12. The other claim made by the 117th Defendant is that the 3/8th share awarded by the Lower Appellate Court to the 65th Defendant should have been deducted from the shara 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, Ex. 103, to his father by Namasivaya Pillai, in 1875, whereas the 22nd Defendant's title is based on the sale-deed, Ex. 150(6), 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 had 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.
13. 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:
What are the shares which the 22nd and the 65th defendants are respectively entitled to, in respect of the purchase from Namasivaya Pillai?14. 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.
[The Additional Subordinate Judge of Tanjore submitted that (1) the 22nd defendant acquired the character of a co-owner or mirasidar, in virtue of the purchase relied on by him; (2) that he has, as such co-owner, acquired a title by prescription and (3) that the 65th and 22nd defendants were respectively entitled to 3/8 Pangus and 113/16 Pangus respectively.]