Judgment :- 1. This is an appeal filed by the defeated plaintiff in conjunction with defendants 5 and 7, in a suit for recovery of possession with mesne profits of six items of immovable property on title, from certain persons who are alleged to be in wrongful possession. The lower court dismissed the entire claim as regards items 1 to 3 and gave a decree to the extent of a fourth share in items 4 to 6. There is also a memorandum of objections filed by the 1st defendant respondent. 2. The facts briefly are these:- One Kochunni Pillai who was a pensioner in the Travancore State, executed a will on 5th Kumbhom 1103 and got it registered in the office of the Sub-Registrar of Parur on the same date. Ext. AG is the will in original and Ext. A is a certified copy thereof. By this will the testator revoked an earlier will which he had made in the year 1099, Ext. I, and bequeathed his properties to the plaintiff, who is the younger of his two sons and to defendants 5 to 7 who are three of his five daughters. The 1st defendant is his eldest son. The will makes no provision either for the 1st defendant or for the other two daughters. The 1st defendant is his eldest son. The will makes no provision either for the 1st defendant or for the other two daughters. The testator died on the 25th Medom 1104. Soon after his death, the plaintiff filed O.S. 338 of 1105 in the Parur Munsiff's Court for a permanent injunction restraining the 1st defendant from interfering with his possession and enjoyment of the properties included in the schedule to that plaint are items 1 to 3 in the schedule attached to the present plaint. He applied by an interlocutory application for a temporary injunction against the 1st defendant pending the suit. The Munsiff allowed the application and granted a temporary injunction. The 1st defendant appealed against that order and the District Judge reversed the order and dismissed the application on the ground that the 1st defendant was in possession of the properties. The plaintiff did not pursue the matter further by taking the matter to the High Court. The Munsiff allowed the application and granted a temporary injunction. The 1st defendant appealed against that order and the District Judge reversed the order and dismissed the application on the ground that the 1st defendant was in possession of the properties. The plaintiff did not pursue the matter further by taking the matter to the High Court. The suit itself was found by the Munsiff to be beyond his jurisdiction and the plaint was ordered to be returned for presentation to the proper court. (See Ex. XVII). Against that order a Civil Revision Petition was filed in the High Court which was also dismissed. (See Ex. XIV). The plaint does not appear to have been either taken back or represented before the proper court. Meanwhile the plaintiff started proceedings before the Division First Class Magistrate, Alwaye, against the 1st defendant praying for action under S. 128 of the Travancore Criminal Procedure Code (corresponding to S. 145 of the Indian and S. 126 of the Cochin Codes) in respect of the 6 items of property comprised in the present suit. The Magistrate passed a preliminary order in respect of all the items against which the 1st defendant filed a Criminal Revision Petition in the Travancore High Court. The High Court maintained the order in so far as items 4 to 6 in the present case were concerned and quashed the same as regards items 1 to 3 on the ground that there was no dispute of possession in respect of these latter items, possession thereof having been found to be with the 1st defendant by the District Court in connection with the application for injunction in O.S. 338 of 1105 already mentioned. The High Court observed that in a case where a party is in peaceful possession of the properties and another party attempts to interfere with that possession the proper remedy is not to take action under S. 128 of the Criminal Procedure Code, but to start proceedings against the intruder under S. 90 of the Travancore Criminal Procedure Code (corresponding to S. 107 of the Indian and S. 92 of the Cochin Code.) The order of the High Court, Ex. XVI was passed on 2nd Vrischigom 1107. There is no information as to what happened to the proceedings before the Magistrate regarding items 4 to 6 after the order of the High Court. 3. XVI was passed on 2nd Vrischigom 1107. There is no information as to what happened to the proceedings before the Magistrate regarding items 4 to 6 after the order of the High Court. 3. This suit was filed on 17th Kanni 1113 based on the rights, title and interest of the plaintiff under the will, Ex. AG, claiming recovery of possession of all the six items of property with mesne profits. Regarding items 4 to 6 the plaintiff alleged that they were in his actual possession after his father's death and that the 1st defendant trespassed thereon in Medam 1112 and obstructed his tenant the 4th defendant's entry. Defendants 2 and 3 were stated to be in possession of some of the items wrongfully and under the 1st defendant. Defendants 5, 6 and 7 were impleaded as co-owners with the plaintiff under the will. No relief was claimed by the plaintiff against them or their interests as he has made clear in paragraph 12 of the plaint. The 1st defendant was the main contesting defendant. He contended that the will relied upon by the plaintiff is void in law as it was brought into existence by the plaintiff by making false representations to the testator and that the testator had no testamentary capacity at the time the will was made. He also contended that all the items of property were in his possession even during the life-time of his father and that possession continued in him thereafter in his capacity as the karnavan of the branch tarwad consisting of the children of the deceased on whom the properties devolved on the death of the father intestate. It was also contended that the suit is barred by res judicata. On account of O.S. 338 of 1105 and by limitation on account of the criminal proceedings which terminated in the order of the High Court already mentioned. Various other contentions were raised by him; it is not, however necessary to refer to all those in detail. Defendants 2 and 3 filed written statements admitting that they were holding the properties under the 1st defendant and contending that they are lawfully in possession. Various other contentions were raised by him; it is not, however necessary to refer to all those in detail. Defendants 2 and 3 filed written statements admitting that they were holding the properties under the 1st defendant and contending that they are lawfully in possession. The 6th defendant who was, as already mentioned one of the persons to whom the properties were bequeathed under the will relied upon by the plaintiff, filed a written statement attacking the will as void as contended by the 1st defendant and contending that the properties came to and continued to be in the possession of the 1st defendant as karnavan of the group of heirs of the father on his intestacy. She also contended that should the will relied upon by the plaintiff be found by the court to be valid, then she is not agreeable to the properties which would fall to her share being delivered to the plaintiff. 4. The court below found in favour of the plaintiff that the will was valid and operative, but also found that the suit is barred by res judicata and limitation as regards items 1 to 3 and in so far as these items were concerned, the suit was dismissed. In respect of items 4 to 6 the lower court found in favour of the plaintiff on the question of title and trespass, but did not give a decree for surrender of these items. Instead, it gave a preliminary decree for partition and delivery to the plaintiff of a fourth share in those properties. 5. The plaintiff presses in this appeal all the claims that he made in the suit and the first defendant repeats most of his contentions in the court below. As the validity of the will is questioned that matter has first to be considered though it is raised in the memorandum of objections by the 1st defendant respondent. The lower court discussed the oral and documentary evidence in detail and came to the conclusion that the will is valid and operative. One main circumstance on which reliance was placed by the court below is that on 7.8.1104, that is more than a year after the date of the will, the testator was examined in open court as a witness in a complicated case. His deposition marked Ex. One main circumstance on which reliance was placed by the court below is that on 7.8.1104, that is more than a year after the date of the will, the testator was examined in open court as a witness in a complicated case. His deposition marked Ex. E in this case would clinch the question against the 1st defendant whose contention is that the testator had no sound mind after two months from the date of execution of the previous will in 1099 when he had an attack of typhoid which ended in a defect of mind from which he never thereafter recovered. It appears to us that in the face of this, the contention ought not to have been raised. We have no hesitation to agree with the court below in its conclusion that at the time of execution of the will Ex. AG the testator had good disposing mind and complete testamentary capacity. 6. The learned Advocate for the 1st defendant respondent contended that the will is void in law on the ground that the requisites of S.15 of Act VI of 1074 (Travancore Will's Act) have not been satisfied. That section provides for attestation of a will by two witnesses. The point raised by the learned counsel is not that the will has not been attested by two witnesses as required by that section, but that the attestation has been proved only by one of the attestors, i.e., P.W. 2 and that the other attestor though alive and available, has not been called. It is not necessary to prove attestation that both the attesting witnesses should be called as witnesses. P.W. 2, one of the attestors, proves that himself and the other attesting witness saw the executant signing the document and that both of them attested at the same time. We hold that the will has been properly attested. 7. The learned counsel for the 1st defendant-respondent did not support the judgment in so far as it relates to the finding that the suit as regards items 1 to 3, is barred by res judicata on account of the proceedings in O.S. 338 of 1105. That finding is obviously unsustainable. As already mentioned, the plaint in that suit was only ordered to be returned for presentation to the proper court. 8. The question of limitation as regards items 1 to 3 is this. That finding is obviously unsustainable. As already mentioned, the plaint in that suit was only ordered to be returned for presentation to the proper court. 8. The question of limitation as regards items 1 to 3 is this. The criminal proceedings which were started by the plaintiff terminated by the order of the High Court quashing the preliminary order passed by the Magistrate in so far as items 1 to 3 were concerned. The High Court observed in the order that the District Court having found those items to be in peaceful possession of the 1st defendant, that possession is liable to be maintained until eviction in due course of law. This order was passed more than three years before this suit was filed and it is therefore claimed on behalf of the 1st defendant (as it was successfully contended before the court below) that Art. 35 of the Travancore Limitation Act applies and as the period of limitation prescribed thereunder is only three years, the suit is barred by limitation. Art. 35 of the Travancore Limitation Act reads thus: The contention is that though the High Court stated in Ex. XVI "in the face of the District Judge's finding that possession was with the petitioner (before the High Court who is the 1st defendant here) I think that the starting of proceedings under S. 128, Criminal Procedure Code, was not the proper proceedings." The learned judge proceeded and concluded the order thus:- "With regard to these survey numbers, the possession of the present petitioner must be maintained until he is evicted by an order of a competent civil court. To this extent the order of the lower court is modified." The concluding portion of this order is relied upon as an order "respecting the possession of immovable property made under the Code of Criminal Procedure" within the meaning of Art.35 of the Limitation Act. The contention is obviously unsustainable. What the High Court did was to declare that on the facts disclosed, no case was made out for taking action under S. 128 under which section the Magistrate passed the preliminary order which was quashed by the High Court. The contention is obviously unsustainable. What the High Court did was to declare that on the facts disclosed, no case was made out for taking action under S. 128 under which section the Magistrate passed the preliminary order which was quashed by the High Court. The subsequent observation made by the High Court towards the end of the order is not and cannot be regarded as an order passed "under the Code of Criminal Procedure" though that observation may be said to be respecting the possession of immovable property, nor can that observation be said to be an order made by the High Court. It was only a statement of the law in general. 9. In Raja Rajgan Maharaja Jagatiit Singh v. Raja Partab Bahadur Singh (AIR 1942 PC 47) Lord Thankerton, delivering the judgment of the Privy Council, stated:- "With regard to the statutory period of limitation, Art.47 of the Act does not apply as there has been no order for possession by the Magistrate under S.145 Criminal Procedure Code." The case arose out of certain proceedings before the Deputy Magistrate between the Raja of Kaparthal and the Raja of Isangar. The parties made a statement during the course of the proceedings to the effect that one of them had entered into possession pursuant to an order of the said Magistrate in another proceedings before him fixing the boundary line between their estates accepting which the Deputy Magistrate ordered that "now there is no need of proceedings under S.145 and consigned the file to the records and directed intimation thereof to the Police. Though the order of the Magistrate related to the possession and operated to confirm the possession of one of the parties to the proceedings, that order was not one passed under the Criminal Procedure Code, or one for the possession of the property. It was an order recognising an antecedent possession which one of the parties obtained independently of the order of the Magistrate which order only recognised and gave effect to that antecedent possession. In Mokshagundam Nagabbushanayya v. Pasam Kotayya (ILR 1947 Mad. 179) Lionel Leach, C.J. (as he then was) sitting with Lakshmana Rao, J., stated:- "S.145 of the Code of Criminal Procedure contemplates two orders, a preliminary order under sub-s.1 and a final order under sub-s. 6". In Mokshagundam Nagabbushanayya v. Pasam Kotayya (ILR 1947 Mad. 179) Lionel Leach, C.J. (as he then was) sitting with Lakshmana Rao, J., stated:- "S.145 of the Code of Criminal Procedure contemplates two orders, a preliminary order under sub-s.1 and a final order under sub-s. 6". Art.47 of the Limitation Act applies to the second order." When, therefore, in proceedings where two orders are contemplated, which is the case of a proceeding under S.128, Criminal Procedure Code, a preliminary order passed by the Magistrate was itself quashed by the High Court it can hardly be contended that any observation made by the High Court in quashing the preliminary order should be regarded as final order under this section. Whether the final order be the final order passed by the Magistrate himself or the final order passed by the High Court in revision, it is clear that in a case where a final order can be passed only subsequent to a preliminary order and if that preliminary order itself is not passed, there cannot be a final order within the meaning of Art. 35. It may be observed that the distinction between a preliminary and a final order would be inapplicable to cases where a preliminary order is not contemplated, for instance, an order under S. 522, Indian Criminal Procedure Code, to which also Art. 47 of the Limitation act will apply. The jurisdiction of Magistrates to take action under S. 128 of the Travancore Criminal Procedure Code arises only on a finding as to the existence of dispute likely to cause a breach of the peace. In a case where no such dispute is alleged or found to exist, the Magistrate's jurisdiction will not be attracted. The Cochin High Court in Cheru v. Vareed (XXIII Cochin 136) quashed the proceedings taken by a Magistrate under S. 126, Cochin Criminal Procedure Code on the ground that there was no allegation of a dispute regarding the immovable properties as contemplated under the Section. It was there pointed out that a party in peaceful possession apprehending trespass by an intruder has to resort to S. 92, Cochin Criminal Procedure Code. It was there pointed out that a party in peaceful possession apprehending trespass by an intruder has to resort to S. 92, Cochin Criminal Procedure Code. In Alagarswami Thevan v. Ramabadra Nadiu Garu (A.I.R. 1929 Madras 38) it was held that when the criminal court which is approached to take action under the Criminal Procedure Code does not itself investigate the matter but records and antecedent peaceful possession in one of the parties based on the decision of a Civil Court, the order passed will not be one passed under the Criminal Procedure Code. It is thus clear that the contention of the learned counsel for the respondent 1st defendant that Art. 35 of the Travancore Limitation Act applies to the case and that the suit, in so far as it relates to items 1 to 3, is barred by limitation, cannot be accepted and that the conclusion come to by the learned judge upon the question of limitation cannot be supported. We hold that there is no bar by limitation for any of the reliefs claimed in the plaint. 10. This leads to the consideration of what, if any, are the reliefs that the plaintiff is entitled to. The lower Court granted the plaintiff a preliminary decree for partition and delivery of a fourth share in items 4 to 6. This cannot be supported. When asked about the justification for such a decree, the appellant's learned counsel stated that when a plaintiff claims more, the court can always grant less to the extent to which the plaintiff is found entitled, and instanced a case of a claim for Rs. 1,000 of which the court finds in favour of the plaintiff to the extent of, say Rs. 750/- and grants a decree for the smaller sum. This kind of approach to the question is fallacious. It is true that quantitatively one-fourth of the property is less than the whole property but looking to the quality of the claim, a claim and decree for partition is entirely different from a claim and decree for delivery of the entire property in ejectment. Whether a suit for ejection can be amended into one for partition is itself a matter which is highly controversial. Surely no relief for partition can be granted in a suit for ejectment at any rate without amendment. Whether a suit for ejection can be amended into one for partition is itself a matter which is highly controversial. Surely no relief for partition can be granted in a suit for ejectment at any rate without amendment. The decree given by the lower court for partition of items 4 to 6 is, therefore, unsustainable and is set aside. The finding of the lower court in favour of the plaintiff on the question of trespass upon these items by the 1st defendant is supported by the evidence in the case and we confirm the finding. 11. There are two provisions in the will relating to plaintiff's rights. The first provision may be translated thus:- "On my death my son Narayanan is entitled to secure and be in possession of all the properties, to be in such possession for four years thereafter, take the income, therefrom and from out of such income, conduct the matters contained in the list signed by me and given to him along with this and appropriate any balance there might be for himself. After the four years he should deliver possession of each of the properties to the respective persons entitled thereto without causing any loss who, after obtaining such possession, should pay tax and enjoy it with all liberties and full powers of alienation." This provision would appear to apply to the properties in the possession of the testator at the time of his death. There is another and a later provision which may be translated thus:- "My son Narayanan is by himself entitled to recover properties which, on my death, are outstanding with others on pattom or otherwise with arrears and future rent etc., by direct negotiation or in ejectment. He is also entitled to recover amounts that might be found due to me by way of pension or otherwise from the Government. He is also directed to deal with my movables etc., as prescribed in the list afore-mentioned." This provision applies to all properties not in the possession of the testator, but in the possession of others, whatever be the reason for those others coming into the possession, whether by mere permission, or on a contract of rent or otherwise. He is also directed to deal with my movables etc., as prescribed in the list afore-mentioned." This provision applies to all properties not in the possession of the testator, but in the possession of others, whatever be the reason for those others coming into the possession, whether by mere permission, or on a contract of rent or otherwise. These provisions of the Will would constitute "my son Narayanan" mentioned therein who is the plaintiff, a sort of executor or administrator charged with the possession, getting in realisation, and distribution of the entire estate of the testator according to the provisions contained in the will and the list referred to therein. The plaintiff is thus entitled to seek for recovery of possession of all the properties of the deceased from whomsoever may be found to be in possession thereof. In this case, defendants 1 to 3 are in possession under the claims set up by the 1st defendant, namely that he was in possession with the permission of his father during the father's life time and from the date of death of the father, the possession continues to be in him in his character as the karnavan of the group of his father's heirs. The will having been found to be true and valid, the first defendant's contention is without foundation and his possession and the possession of defendants 2 and 3 who claim under him would be that of trespassers having no claim to withhold possession from the plaintiff who is entitled to such possession. The plaintiff is therefore entitled to and is given a decree for possession of all the items of property with mesne profits as claimed in the plaint, against the assets of the deceased 1st defendant. Defendants 2 and 3 are also liable but only for the amounts that they are liable to pay to the 1st defendant under their contracts, and their liability is limited to the period after suit. 12. At the conclusion of the argument, we put it to the learned counsel for the respondent whether the plaintiff could not be given a decree even if he be regarded only as a co-owner as on a finding in favour of the validity of the will, defendants 1 to 3 would be trespassers against whom even a co-owner can sustain a suit in ejectment of the entire property on his own behalf. He took time to consider the question and after considering it, submitted that he did not canvass the correctness of the legal position pointed out by us. Indeed it is hardly contestable. "Joint tenants are said to be "seized" per my et per tout; by the half, or moiety, and by all" (2 Bl. Com.182). The position of tenants-in-common is also the same. On account of the unity of possession which is an essential feature of joint tenancy, as also of tenancy-in-common, one joint tenant or co-owner who is in possession is in possession not merely for himself but also for all the others. Those others would be deemed to be in possession. Until partition where that is permissible, no one of them can say that he is entitled to any part of the property (Vide Syed Ahmed Sahib Shutari v. The Magnestie Syndicate Limited (I.L.R. XXXIX Madras 501), P. Thimmayya v. P. Siddappa (A.I.R. 1925 Madras 63), Palani Ammal v. L. Sethurama Iyengar (1940-1 MLJ 290), Korah Philipose v. Thoma Thoma (XXXI T.L.R. 193), Varghese Chacko v. Sivasankara Pillai - (V D.L.R. 64 U.S.T.C.). The learned counsel for the respondent however contended that this question does not arise in the present case because the 6th defendant who is admittedly one of the co-owners has stated in paragraph 15 of her written statement that should be court find that the will is genuine, she is not agreeable to the portion of the properties which would fall to her share being delivered to the plaintiff and that such portion should not be so delivered. This plea of the 6th defendant does not, in law, offer any obstacle to a decree being given to the plaintiff for recovery of the entire property. The 6th defendant has no case that the party in possession holds such possession under her or with her consent. Her only contention is that the slice of property which would fall to her share should not be delivered to the plaintiff. Admittedly there has been no partition and until a partition, no co-owner can lay claim to any slice of property. Such a claim would offend the very conception of the unity of possession which a co-owner has in law. Paragraph 15 of the written statement would appear to have been meant to hit the plaintiff's claim, but the claim is missed, the weapon not having been properly forged. Such a claim would offend the very conception of the unity of possession which a co-owner has in law. Paragraph 15 of the written statement would appear to have been meant to hit the plaintiff's claim, but the claim is missed, the weapon not having been properly forged. If the 6th defendant had stated that the plaintiff cannot be given a decree for possession by himself but that the decree should be one for joint possession of the plaintiff and the 6th defendant, that plea would have had to be upheld. The plea raised however is for refusal of a relief in respect of a slice of a property which is non-existent and cannot exist until a partition between the co-owners is effected which, in the circumstances of the case and under the provisions of the will, can take place only after the plaintiff recovers possession. The right to recover possession of the entire property and the liability to deliver the quantum to the various parties entitled, is upon the plaintiff. 13. The 1st defendant made a claim for value of improvements in the court below. The court deputed a commissioner to report upon the improvements claimed and their value. Ext. XXI is the commissioner's report. The learned counsel for the respondent submitted that in the event of a decree being given to the plaintiff for possession, his claim for value of improvements must be considered. The court below did not consider it because the decree that it granted was a preliminary decree for partition and related only to three of the items in the pliant. Now that we are granting a decree to the plaintiff for recovery of the entire property, the respondent's claim for value of improvements has to be considered. 14. Ex. XXI shows that the claim for reclamation is without foundation and that except in respect of two trees of negligible value, ie., items 15 and 18 (in Ex. XXI) all the trees for which value is claimed came into existence during the lifetime of the deceased Kochunni Pillai. 14. Ex. XXI shows that the claim for reclamation is without foundation and that except in respect of two trees of negligible value, ie., items 15 and 18 (in Ex. XXI) all the trees for which value is claimed came into existence during the lifetime of the deceased Kochunni Pillai. Assuming that it was the first defendant that was responsible for the coming into existence of those improvements, he not having set up any jural relation between himself and his father, or that he had independent possession of the properties which would entitle him to claim value, it is not possible to decree to him value of improvements. The probabilities are that the improvements were effected at the expense of, if not by, Kochunni Pillai. Except referring to the commissioner's report, the learned counsel for the respondent did not refer to any other evidence to support his claim for value of improvements. After the death of Kochunni Pillai, the 1st defendant appears to have set up a claim to his karnavanship and commenced holding of the properties by leasing them, taking releases from the lessees and so forth, obviously for the purpose of setting up and supporting his title. The two trees that appear to have come into existence after Kochunni Pillai's death must have been brought into existence with the malafide object of setting up a title against the true owner. Though even a person who may be in law a trespasser, may be entitled to value of improvements if he comes into possession and makes improvements bonafide, a person deliberately entering into and doing works in the property for his own purposes with a view to start and establish a false claim for title thereto, is not entitled to value of improvements. These two trees may be removed by the party in possession before surrender. 15. The learned counsel for the respondent also contended before us that the plaintiff has given up his separate rights under the will and has agreed to a partition of the properties in dispute per capita among the members of the tarwad. This matter has been exhaustively dealt with by the lower court and found against the respondent. We are in agreement with the conclusion come to by the lower court which is amply supported by the evidence in the case and the only one possible under the circumstances. This matter has been exhaustively dealt with by the lower court and found against the respondent. We are in agreement with the conclusion come to by the lower court which is amply supported by the evidence in the case and the only one possible under the circumstances. It is not necessary for us to repeat the reasons. 16. The appeal is allowed and the memorandum of objections dismissed with costs. Appeal allowed.