1. The Subordinate Judge has not recorded clear findings on the questions:
(1) How long the 1st defendant or any person who derived his possession from or through him continued to be in possession; and
(2) when and how the 3rd defendant obtained possession of the land.
2. The findings will be submitted within one month after the recess and seven days will be allowed for filing objections.
3. Any further question arising in the second appeal is reserved.
4. In compliance with the above order, the Subordinate Judge of Kubakonam submitted the following
I have been asked to submit on the evidence on record findings on the following issues:
(1) How long the 1st defendant or any person who derived his possession from or through him continued to be in possession?
(2) When and how the 3rd defendant obtained possession of the land?
2. The first issue requires a preliminary finding on the issue as to which persons, if any, derived their possession through or under the 1st defendant. The District Munsif found that Korangu Samu was a tenant of the 3rd defendant's father and the 3rd defendant, and that there is nothing convincing on record to connect the tenancy of plaintiffs' 4th witness with that of Korangu Samu. This Court, on the other hand, says that it is in the evidence of this witness (plaintiffs' 4th witness) that he let into possession one Korangu Samu that the 3rd defendant would appear to have taken possession of the shop from the last named individual, and that so far as the suit site is concerned, any occupation or use thereof by any number of successive persons must be traced to the original permission derived under Exhibit A. The High Court do not consider this as a definite finding, but do not say what facts should be taken as concluded by findings.
3. Defendants Nos. 2 and 3 began to argue before me that the suit site or shop is not included in the title-deeds of the plaintiffs, Exhibits B, G and A. That was not the basis on which the suit was tried and heard before the District Munsif, vide para. 7 of his judgment. It was not denied in this Court, too, on the previous occasion. The question of the title being in plaintiffs was not even questioned in the grounds of second appeal. I, therefore, disallowed the new ground of objection to the title and the title-deeds of plaintiffs.
4. It may, therefore, be accepted that plaintiffs, who were the owners of the property, let the 1st defendant into possession tinder Exhibit A in the year 1888, and that the 1st defendant sub-let the shop to the father of plaintiffs' 4th witness who describes himself as shop-keeper in Exhibit G. The lease, Exhibit A expires, with 30th Panguni, Vikruti (11th April 1891); and the 1st defendant executed no fresh lease deed thereafter. He says: 'First plaintiff did not ask me to renew the lease deed. First plaintiff asked me to execute a fresh lease deed (for) sometime. I did not execute one. I did not pay rent directly to 1st plaintiff.' It is not likely that 1st defendant did continue as lessee of the shop even after the period fixed in Exhibit A without giving a renewed rent chit, especially when the 1st defendant was not himself in actual possession. It is also strange that the attestation of Nagalinga who occupied the premises was not secured even on Exhibit A, and that 1st defendant did not secure any rent chit from Nagalinga and after his death from his son (plaintiffs' 4th witness). These considerations, no doubt, throw considerable suspicion on the reality of the 1st defendant's tenancy itself under the plaintiffs and of the subtenancy of Nagalinga and plaintiffs' 4th witness under 1st defendant. But I am not prepared to attach any importance to these vague suggestions when the 3rd defendant (defence 1st witness) does not himself know who was in possession of the shop prior to Korangu Samu, who was admittedly in actual possession prior to 1894, the date of Exhibit I, according to the case both of the plaintiffs and of the defendants. Plaintiffs' 1st witness, the agent of the plaintiffs' family, swears to having collected rent from Naga-linga and his son (plaintiffs' 4th witness) till 1892, and files accounts, Exhibits C and D, in corroboration of his evidence. No satisfactory ground is made oat for discrediting these pieces of evidence as regards collection of rent: and there is no satisfactory evidence of actual enjoyment of the shop by the 3rd defendant or his father during that period. This version of the collection of rent also relates to the period expressly covered by Exhibit A. I, therefore, find that the 1st defendant through his sub-lessees, Nagalinga, and Swaminadha, (plaintiffs' 4th witness) was in possession of the shop down to the year 1892.
5. The person that came into possession next is Karangu Samu. Plaintiffs claim Korangu Samu as let into possession by their sub-lessee, Swaminatha (plaintiffs' 4th witness), while the 3rd defendent claims him to be his father's lessee. His enjoyment of the shop is admitted by both sides. The only question for consideration is as to whose lessee he was. There is no mention of this personage in any part of the pleadings. Plaintiffs' 1st witness, the agent of the plaintiffs till 1892, mates no mention of Korangu Samu or his getting the shop from plaintiffs' 4th witness or even the fact that plaintiffs' 4th witness had to leave the place for Pondicherry for treatment. Agent Sreenivasa Iyengar, who succeeded plaintiffs' 1st witness, is not put forward, and there is no evidence as to whether he is alive or not. Plaintiffs' 2nd witness who professes to have collected rents of the shop does not mention this occupant's name in his examination-in-chief, and it is elicited from him by the defence for the first time, that Ammanpettai Sami Chetty (alias Korangu Somu) was also trading in the plaint shop for two or three years and was paying rent. It is curious how this witness who professes to have collected rents from the occupants did not give the names of the occupants till their names were put to him in cross-examination, and how he ridiculously blunders and knows not what he deposes to, when he says 'Naga-linga (who died prior to 189C) was in possession of the shop after Sami Chetty (Korangu Samu).' Even Nagalinga's son, Swaminatha (plaintiff's 4th witness), does not return from Pondicherry till after five or six years later. The B Diary of the suit shows there was an interval between the examination of plaintiffs' 2nd witness and that of plaintiffs' 3rd witness (21st October 1909 to 6th November 1909). This interval appears to have been utilised to put forward for the first time the story of regular letting of the shop by Swaminatha (plaintiffs' 4th witness) to Korangu Samu. Plaintiffs' second witness was not able on 21st October 1909 to depose to this letting, but was content in repeating in re-examination that Sami Chetty (Korangu Samu) was also paying rent to Udayar (plaintiffs). Plaintiffs' 3rd witness (1st defendant) was not quite willing to be the father of this new story and would only depose 'Sami Pillai (plaintiffs' 4th witness) left the shop on rent to Korangu Sami Pillai. Sami Pillai (later) said that Sami Pillai had asked him to pay the rent to Sami Pillai. This he said when I asked him to pay rent.' Plaintiffs' 4th witness deposes: 'After my father's death, I enjoyed it for 2 years. My father died 13--18 1/2 years ago.... I left the shop for rent to Korangu Sami Chetty. He executed lease-deed to me which I lost. I asked Samia Chetty to pay the rent to Somes were Royar (3rd plaintiff) and asked him to pay the amount in my house. I left for Pondicherry for medical treatment for five years in Pondicherry, Mayavaram and other places. I returned to Melakaveri six years ago. When I returned, I was told that Someswara, Royar has purchased it from the daughter of one Kumarasawmy Pillai. I have come to Court only this day in connection with this suit. I do not know for how many years my father took the shop on rent. I have not executed any lease-deed. I was paying rent for nearly 30 years. I took no receipt for the rent paid by me. I keep no accounts. There was no settled rent when my father took the lease.' It is not possible to say if this is the son of the sublessee Nagalinga, from the evidence he gives, and from the stage of the case when he was put forward as witness. His is the only evidence that Korangu Sawmi was his tenant. I am not prepared to attach any weight to such evidence, especially when the agents of plaintiff (plaintiffs' witnesses Nos. 1 and 2) and the 1st defendant himself do not profess any tangible knowledge of the tenant, Korangu. Sawmi, in actual occupation of the shop. Defence witnesses Nos. 1 to 5 do not also say if Korangu Samu, who was in possession of the shop, was tenant of plaintiffs or of the 3rd defendant. Korangu Samu is not put forward as witness by either side and the evidence does not show whether he is alive or dead, I, therefore, find that Korangu Samu was in possession of the shop after 1892 for two or three years (vide plaintiffs' 2nd witness), but he is not shown to be either the tenant of plaintiffs' sub-lessee or the tenant of 3rd defendant's father.
6. The possession of Korangu Samu carries the history of the suit shop down to about 1894 or 1395. There is no evidence worth the name about the possession of the suit shop in favour of the plaintiffs. The vague statement of plaintiffs' witnesses Nos. 2 and 3 that rent was paid till seven or eight years ago is worthless. Plaintiffs' 4th witness who was the plaintiffs' sub-lessee was away from the place after 1892 and knows nothing about the enjoyment of the suit shop and the payment thereof. Plaintiffs' witnesses Nos. 2 and 3 could not give even the names of the occupants of the shop and how they came into possession of the shop. The defendants' evidence of possession and enjoyment of the shop is cogent and convincing at least from 1895, the date of Exhibit II, if not from 1894, the date of Exhibit I. Exhibit I is unregistered and the tenant that held under it is not called. Exhibit II to VI series show defendants' possession and enjoyment. The Municipal receipts, Exhibit E series and F, are not of much value as showing possession. I, therefore, find that plaintiffs, the 1st defendant or persons that claim under him, are not proved to have been in possession subsequent to 1892, and that the 3rd defendant's father and the 3rd defendant and their lessees have been in possession and enjoyment of the suit shop from 18th December 1895, the date of Exhibit II.
7. The plaintiffs then contended that the enjoyment and possession of the shop is not possession of the site of the shop. It will be remembered that plaintiffs acquired only the bare site under Exhibit B and rented it out to 1st defendant under Exhibit A for the express purpose of putting up a shop for three years. The shop on the site appears to have been only a thatch and was renewed from time to time by the occupants--see Exhibit V and the leases, Exhibits II to IVa. It would, no doubt, be true that persons let into possession by the 1st defendant and those that claim under him cannot set up their own title or possession as well of the thatch as of the land. But where a person whose possession of the shop could not be traced to the 1st defendant or his lessees is in possession and enjoyment of the shop, the argument that such a person must be taken to have prescribed only for the superstructure and not for the site occupied by the thatch is unintelligible. The possession and enjoyment of the thatched shop is exclusive possession of the site as well. The defendants' non-payment of the Municipal taxes till recently and the payment of the same by the plaintiffs relates as well to the title of the thatch as to the site below. Municipal taxes are generally levied for the shop and not for bare sites. I, therefore, find that the possession and enjoyment of the defendants Nos. 2 and 3 covered both the shop and the site.
8. How the 3rd defendant obtained possession of the land is not clear from the evidence. Plaintiffs' 2nd witness does not say how the 3rd defendant came to be in possession of the shop or the land. He admits that Subramania Vadyar (the father of the 3rd defendant) was also in possession of the shop for some time. He does not say that they paid rent to any person or to the plaintiffs. Plaintiffs' 2nd witness, the direct lessee under plaintiffs and his sublessee (plaintiffs' 4th witness), do not say anything about the point. The 3rd defendant claimed the shop as his ancestral property, but let in no evidence about it except his own oath. He has given up that case in second appeal--see the grounds of appeal. He alleged in his written statement that the suit land was measured in his name in the survey that took place more than 12 years ago as Survey No. 1338. But the plaintiffs did not choose to question that statement at the trial, and the survey papers have not been put in. It is, however, clear from this evidence set out above, that 3rd defendant's father and after him the 3rd defendant have been in possession and enjoyment of the shop and the land from even prior to 1895, the date of Exhibit II taken by the 3rd defendant only, and that they did not hold under any person but in their own right. I am unable to agree with the observation of this Court cited above in para. 2 that all possession must be traced to Exhibit A, even where there is no evidence that the persons thus in possession have paid rent or attorned to the plaintiffs or 1st defendant or the sub-lessees. The evidence is that after 3rd defendant came to be in possession, not only he but all the shop-keepers refused to pay rent--See plaintiffs' 2nd witness. I, therefore, find that it is not shown how the 3rd defendant obtained possession of the land and that he, therefore, got into possession on his account and in his own right.
9. In the result my findings on the issue are:
(1) That the 1st defendant and his sublessees, Nagalinga and Swaminadha, were in possession only till the year 1892, and that Korangu Samu was in possession thereafter till the 3rd defendant's father came into possession some time prior to December 1895, and is not shown to be a person that held under 1st defendant or his sub-lessee, and that the 3rd defendant has been in possession of the land for some time prior to December 1895, at the worst, and that, as it is not shown how he obtained possession or that he obtained possession from or under plaintiffs' lessee or sub-lessees, the 3rd defendant was in possession in his own right and on his account.
This second appeal coming on for final hearing, after the return of the findings from the lower Appellate Court, upon the issues referred by this Court for trial on Wednesday, the 27th day of March 1912, and having stood over for consideration till this day, the Court delivered the following