1. We are not prepared to hold that the lower Appellate Court's treatment of Exhibits D and K would justify interference.
2. The learned District Judge has, however, made no reference to Exhibits F and H series, and in view of the description of their purport in the District Munsif's judgment, we cannot assume that the District Judge considered them. In these circum-stances we must ask him to submit revised findings on the questions raised in the appeals with reference to them.
3. He has also made no reference to the fact that 2nd defendant in Original Suit No. 179 of 1911 (2nd Respondent in Second Appeal No. 753 of 1913) admitted plaintiff's claim fully in her written statement. The importance of this seems to, have been recognized in neither Court. For no issue was framed with reference to it, though on this pleading plaintiff was clearly entitled to a decree against 2nd defendant for any portion of the suit site found to be in her exclusive possession; and it was, therefore, necessary to ascertain the extent of such site, if any.
4. It is further urged that 2nd defendant's admission should have been considered as evidence against her co-defendants and against the defendants in the other suits tried with Original Suit No. 179 of 1911 and now under appeal. As regards 2nd defendant's co-defendants we adopt the reasoning contained in the judgment delivered by one of us in Appavu Chettiar v. Nanjappa Goundan 20 Ind. Cas. 792 : 25 M.L.J. 329 : 14 M.L.T. 117 and hold that, as 2nd defendant's plea was not made evidence at the trial by examining her or otherwise, it cannot be considered except with reference to the determination of the extent, if any, recoverable from her. A fortiori it cannot be considered against the defendants in the other suits.
5. There must, therefore, be a remand in order (1) that the lower Appellate Court may submit fresh findings on the questions raised in the appeals with reference to Exhibits F and H series, (2) that it may frame, try and find on any issues involved by 2nd defendant's admission, taking any fresh evidence relevant to them which may be adduced, and (if necessary) considering any supplementary written statements which it may think it advisable to call for from the other defendants. It is because it appears advisable to give the parties an opportunity for filing such statements that we do not frame additional issues in this Court. Findings should be submitted within six weeks from the date of this order and seven days will be allowed for filing objections.
6. In compliance with the order contained in the above judgment, the District Judge of Trichinopoly submitted the following.
7. Finding.--Plaintiff sued various alleged tenants in three suits and got decrees that plaint property belonged to plaint devasthanam, to recover possession thereof after removing certain buildings and for certain arrears of rent.
8. 2. On appeal, my predecessor, while upholding1 plaintiff's title, found that Exhibits D and K series of accounts did not help plaintiff in any way, there was no evidence that defendants ever paid rent to plaint devasthanam and their possession was adverse to plaintiff and the 12 years' rules. He, therefore, allowed the appeal.
9. 3. On second appeal, the High Court upheld this Court's rejection of Exhibits D and K series, but ask me for revised findings on the question raised in the appeals with reference to Exhibits F and H series and also to frame, try and find on any issues involved by the admission of 2nd' defendant in Original Suit No. 179 of 1911 of plaintiff's claim. I have, therefore, framed an issue, 'was 2nd defendant in exclusive possession of any, and what, portion of the property in suit in Original Suit No. 179 of 1911 at the time of suit.'
10. 4. The parties have taken no steps beyond argument on the existing record. The points raised on appeal are that defendants are not shown to be tenants of plaintiff and plaintiff has not shown possession within 12 years.
11. 5. Exhibit V is a delivery attakshi showing delivery of plaint Kadainili tope to plaintiff in 1902. Plaintiff admittedly did not dispossess the tenants of the houses therein which are plaint houses. There is, however, no evidence since Exhibits D and K series are ruled out, that defendants ever attorned to plaintiff as landlord or paid him rent.
12. 6. Exhibit H series shows that plaintiff leased the trees in the tope. Defendants concede this and it is clear from plaintiff's oral evidence that he leased all the trees, even those that stand in land used rightly or wrongly as backyard of some of the defendants. But H series throws no light on the question of whether defendants were ever tenants under plaintiff and paid him rent. It may easily be that they built houses long ago on vacant village site--as people do in natham lands and the Inamdar is claiming rent for houses on village-site because the whole village is inam.
13. 7. I, therefore, find the defendants are not tenants of plaintiff and that since the long possession is admitted, it is adverse to plaintiff.
14. 8. As regards 2nd defendant, beyond her written statement that she occupied a site as tenant of plaintiff there is no evidence, She did not go into the box and her husband, 1st defendant, did and denied it.
15. 9. I find, therefore, that the 2nd defendant was not really in possession of any portion of the property in Original Suit No. 179 of 1911.
16. These second appeals coming on for final hearing this day, after the return of the findings of the lower Appellate Court upon the questions referred by this Court for trial, the Court delivered the following
17. Judgment.--The objections to the findings raise no question of law. We accept the findings. The second appeals are dismissed with costs.