1. This second appeal relates to the plaintiff's right to recover two of the items included in a demise made in favour of the family of defendants Nos. 1 to 10. The items with which we are concerned are Nos. 2 and 4. Of these, item 2 is in the possession of the 17th defendant. The case of the demises is that they were evicted from this item in pursuance of a decree obtained by a stranger and that as they lost possession of the item, in taking the account between the plaintiff and them, the proportionate rent of this item must be deducted. The 17th defendant who was subsequently made a party is the person in possession of this item and he contends that he obtained possession of this item from the Thomarakavu davaswam which he says is the jenmi. The 4th issue in the suit raised the question whether the demises lost possession of the property in thy suit referred to by them and the 3rd issue raised the question of the 17th defendant's title to hold the land independently of the plaintiff on the ground that the land belonged to another jenmi. The District Munsif found the 4th issue against the demisees, his view being that the 2nd item was not one of 'the properties from which they were ejected in the suit referred to by them, Original Suit No. 33 of 1901, on the file of the District Munsif s Court of Tirur. He found also that the 17th defendant was not entitled to hold on a different title although he dealt very briefly with that question. On appeal, the Subordinate Judge reversed the finding of the District Munsif on the 2nd issue and held that the demisees were ejected from item 2 in Suit No. 33 of 1901. He recorded no finding on the 17th defendant's right to hold it as land belonging to a different jenmi. According to the case of the plaintiff himself, the 17th defendant did not come into possession of this land under the demise sued on. He seems, no doubt, to have contended that the demisees were guilty of collusion in allowing the 17th defendant to obtain possession; still, it is not possible to hold that he contended that the 17th defendant's possession was under the demise sued on. The suit as against the 17r,h defendant must, therefore, be regarded as one based on title and the plaintiff would not be entitled to a decree without proving his title and possession within 12 years prior to the suit and the case would be governed by Article 142 of the Limitation Act. If the plaintiff's demisees were in possession within 12 years prior to the suit, that would no doubt be sufficient to prove his possession in law within 12 years of the suit. The 17th defendant's own possession admittedly commenced only in 1903. The Subordinate Judge having failed to record any finding on the question of the 17th defendant's ienmi's title and of the plaintiff's title to recover land from the 17th. defendant, we must ask him. to record a finding on the question whether the plaintiff is entitled to recover the land from the 17th. defendant on the basis of his title, and, if so, whether he was in possession of the land, either directly or through his tenants, within 12 years prior to the suit.
2. With respect to the 4th item, the plea of the demisees is that they were not put in possession of it. The 16th defendant claimed to be a mortgagee under the demisees on an oral mortgage and admitted the plaintiff's right to recover possession and claimed pay. merit only of the mortgage amount due to him. The 18th defendant was the person who appealed against the Munsif's decree for surrender of the properties including this item. His right was derived under a hypothecation document executed by the demisees, and he is in possession of the item. The District Munsif found that although possession was not given to the demisees, the demisor, in accordance with his promise contained in the kanom-deed, subsequently put him in possession, causing the person who was actually in possession at the date of the demise to surrender the item to the demisees. The Subordinate Judge reversed this finding. In doing so, he has referred only to the oral evidence let in by the plaintiff and has made no reference to the, valuable evidence contained in Exhibits E. and VI, hypothecation documents executed by some of the demisees two years after the date of the demise, Exhibit VI being in favour of the 18th defendant himself. Both these documents state that the executants were in possession of this item as well as other items included in the demise. It is, of course, possible that this admission was made by mistake but prima facie the statement is one which it is the duty of the demisees to explain. The question, no doubt, is one of fact as urged by Mr. Ananthakrishna Aiyar, but as the finding is based purely on the oral evidence in the case and the more important documentary evidence has not been referred to by the Subordinate Judge, we think, in the circumstances, that he should be asked to record a fresh finding on the question.
3. The Subordinate Judge is requested to submit his findings on the evidence on record within one month from the date of the receipt of this order. Seven days will be allowed for filing objections.
4. In pursuance of the order contained in the above judgment, the Subordinate Judge of South Malabar at Palghat submitted the following
1. I am directed to submit findings on the following issues:
Whether the plaintiff is entitled to recover the land, item No. 2, from the 17th defendant on the basis of his title, and, if so, whether he was in possession of the land, either directly or through his tenants within, 12 years prior to the suit?
Whether the demisor put the demisees in possession of the land, item No. 4, in accordance with his promise contained in the Teanom-deed?
First issue: * * * * *
Second issue: * * * * *
2. I find that the demisee Avomma was put in possession of the land, item No. 4, in accordance with the promise contained in the kanom-deed V and its kychit A.
3. This second appeal coming on for final hearing after the receipt of the finding of the lower Court, the Court delivered the following
5. We accept the finding of the Subordinate Judge on the second issue sent down by us, namely, whether the demisor put the demisees in possession of the land, item No. 4, in accordance with his promise contained in the kanom-deed.
6. On the first issue, he has found that item No. 2, was not the jenm of Gopala Menon and is, therefore, not the jenm of plaintiff and that the plaintiff was not in possession as jenmi either directly or through tenants at any time. But he proceeds to find that Gopala Menon and the plaintiff were in possession through Avomma, though not as jenmi, till the execution of the decree in Original Suit No. 33 of 1901, that is, till 16th August 1902. The demise by Gopala Menon to Avomma was in the year 1893 and this suit was brought in the year 1908. The plaintiff, as purchaser of the rights of Gopala Menon in the property, would be entitled to a decree for the eviction of the 17th defendant whose possession dates only from 1908, unless it be proved that Gopala Menon was in some way holding under the Tho-marakavu devaswam. Of this apparently there is no evidence at all on record. The Subordinate Judge says that the 17th defendant suggested that Gopala Menon might have been a sub-desmisee under Neelakantan Nambudiri. The Subordinate Judge was content to accept this suggestion. But, in our opinion, he was not entitled to do so, unless there was some evidence on record to support it. The Subordinate Judge, no doubt, finds that Gopala Menon's jenm title has not been proved. But in the absence of any better title proved on behalf of the devaswam, Gopal Menon's possessory title which passed to the plaintiff is sufficient to entitle the plaintiff to a decree in ejectment against the 17th defendant, a possesory title being good against all the world except the true owner. See Narayana Row v. Dharmachar 26 M.K 514; Shi Gopal v. Ayesha Begam 29 A.P 52 : 3 A.L.J. 775 : (1906) A.W.N. 264 and Perry v. Clissold (1907) A.C. 73 : 76 L.J.P.C. 19 : 95 L.T. 890 : 23 T.L.R. 232. The result is that the decree of lower Appellate Court must be modified and that of the District Munsif must be restored. The appellant's costs in this and in the lower Appellate Court will be paid in equal proportions by the 17th and the 18th defendants.