Marimuthu Goundan v. Thambi — 1960 DIGILAW 368 (KER)

JUDGMENT T.K. Joseph, J. 1. This appeal arises from the decree in a suit in ejectment. The first defendant is the appellant. 2. The plaintiff's case was that he obtained title to the properties under a partition deed, Ext. C and that the defendants trespassed on the properties in 1953. He sued for recovery of possession of the properties with mesne profits at the rate of Rs. 1,800/- per annum from 30-3-1953. The first defendant denied the alleged trespass and contended that he was in possession of the properties under a lease granted by the plaintiff's mother and grandfather during the plaintiff's minority. He also claimed compensation for improvements made by him. The court below decreed the suit allowing recovery of possession with mesne profits and directing the plaintiff to pay a sum of Rs. 505-10-0 to the first defendant as value of improvements. The first defendant has preferred the appeal from the decree and the plaintiff has filed a memorandum of cross objections, objecting to the decree awarding compensation for improvements. 3. A few facts which are admitted by both sides may be stated: The plaintiff is the son of Kanthaswamy Goundan. His father Perumal Goundan was the original owner of the properties. The properties were sold in execution of a decree against Perumal Goundan, who was at that time in jail, and were purchased by the decree holder Subramonia Iyer who assigned the same to Perumal Goundan's wife Marakkal and son Kanthaswamy. After Perumal Goundan returned from jail, Marakkal gave an assignment of her rights to Perumal Gouadan. An agreement Ext. D was executed in 1119 by Perumal Goundan and Kanthaswamy by which the properties were divided between them for enjoyment. There was a clause in the agreement Ext. D restraining alienation by either party. Perumal Goundan however assigned Ms share to the first defendant in 1120. Thereupon Kanthaswamy sued in O. S. No. 53 of 1120 for cancellation of the deed of assignment and during the pendency of the suit, the first defendant assigned the properties back to Perumal Goundan under Ext. A dated 20-7-1120. The suit was compromised and Ext. E dated 22-7-1120 is copy of the compromise petition. A decree followed on the basis of the compromise, and Ext. G dated 23-7-1120 is copy of the judgment. A dated 20-7-1120. The suit was compromised and Ext. E dated 22-7-1120 is copy of the compromise petition. A decree followed on the basis of the compromise, and Ext. G dated 23-7-1120 is copy of the judgment. Perumal Goundan assigned his rights to the plaintiff in 1124 and there was a partition between the plaintiff and Kanthaswamy in 1123 evidenced by Ext. C where under the plaintiff obtained these properties. Perumal Goundan did not join in the execution of Ext. C but he attested the same. The plaintiff was a minor on the date of Ext. C and his maternal uncle was made his guardian by the deed of partition, Ext. C. The guardian Nachimuthu Goundan has instituted this suit as next-friend of the minor plaintiff. 4. The first point raised by the appellant is that this being a suit in ejectment, the plaintiff was bound to prove title and possession within 12 years of the suit and that the court below wrongly cast the burden of proof on the first defendant to prove the lease set up by him. This is a case in which the plaintiff's title is admitted by the first defendant. The latter, no doubt, denies the allegation of trespass and sets up an oral lease of the properties but the possession pleaded by him is as lessee and so there is no point in the contention that the plaintiff must prove possession within twelve years. The possession of a lessee is possession of the owner for purposes of Article 142 of the Limitation Act. We may in this connection refer to the decision in Narsingh Narain Singh v. Dharam Thakur (9 CWN 144) where it was held that when the owner of land seeks possession on the allegation that the party in possession had no right to continue in it and his title to possession is proved or admitted, he can claim a decree unless the defendant proves the existence of a tenancy which entitles him to retain possession. Even apart from this, the question of onus of proof is only of academic interest in this case as the first defendant look up the onus by examining witnesses and proving about 68 documents to establish the lease. In the circumstances we are unable to hold that the decision of the court below is vitiated by any error regarding burden of proof. 5. In the circumstances we are unable to hold that the decision of the court below is vitiated by any error regarding burden of proof. 5. It was also urged that the learned Subordinate Judge did not discuss the oral evidence adduced by the plaintiff. The plaintiff examined only two witnesses, Perumal Goundan and the plaintiff's next-friend. It is incorrect to say that the evidence has not been considered by the learned Judge. The evidence of P. W. 1 is discussed in paragraph 15 of the judgment. P. W. 2 has given only formal evidence as next friend,of the minor plaintiff. There is no substance in this point either. 6. The more important question is whether the lease pleaded by the first defendant is true. According to him all except 17/8 Valloms of land were leased to him in Meenom 1120 and the remaining portion in 1128. He examined nine witnesses besides himself to prove the lease. The evidence of these witnesses was placed before us and in view of the elaborate discussion of the same by the learned Judge, we do not consider it necessary to refer to the same in detail. However a few salient points may be mentioned. The first defendant had no consistent case regarding the lease of 1120. He has given three versions about the dale. One is that it took place a day after the execution of Ext. A and according to this version it must have been on 21-7-1120. Then he shifted the position and said that it was between 10th and 20th of Meenom. A third version given by him is that it must have been between the 20th and 23rd of Meenom. According to him the negotiations took place and the transaction was concluded under a tamarind tree. There is conflict between the version of the witnesses as to who all were present. Although the defendant's case is that he paid the rent to Perumal Goundan and the plaintiff's mother, he has no record or account to evidence the same. He does not know how much he paid to Perumal Goundan and how much to the plaintiff's mother. He was aware at that time that the properties belonged to the plaintiff. The witnesses who speak about the first lease are D. Ws. 3, 4 and 7. Of these, D. Ws. He does not know how much he paid to Perumal Goundan and how much to the plaintiff's mother. He was aware at that time that the properties belonged to the plaintiff. The witnesses who speak about the first lease are D. Ws. 3, 4 and 7. Of these, D. Ws. 3 and 7 are persons who had stood surety for the first defendant in the past. D. W. 4 does not know the amount of rent or the location of the property. The evidence of these witnesses show that they have been hired for this purpose. D. Ws. 7, 8 and 9 speak about the later lease of 1128. These are also witnesses interested in the first defendant as stated by the lower court. We have no hesitation in disbelieving the evidence of these witnesses. 7. The first defendant places strong reliance on the fact that he was paying the tax on the properties and that all the tax receipts are in his possession. In the circumstances of this case no weight can be attached to this fact. Perumal Goundan who was examined as P. W. 1 has given an explanation for the same. According to him, he and his deceased brother had some properties in common held under a joint patta. After the death of the brother the first defendant who is Perumal Goundan's nephew was cultivating those lands and paying tax for the properties as well as the properties involved in this suit which were close by. In view of the close relationship between them, the first defendant was allowed to be in possession of the tax receipts. The explanation gains strength from the fact that the tax due in respect of the plaint properties was paid from 1115 onwards by the first defendant. Exts. VII(49); (45) to (48), (40) to (43), (39), (50), (36) and (38) are tax receipts for the years 1115 to 1119. Admittedly the first defendant had no leasehold interest in the plaint properties at that time, but he paid the tax and the tax receipts for these years also are in his possession. This shows that it is not possible to attach as much weight as one would normally give to possession of tax receipts by a person claiming to be the lessee. This shows that it is not possible to attach as much weight as one would normally give to possession of tax receipts by a person claiming to be the lessee. In the circumstances we accept the explanation of P. W. 1 as to how the first defendant happened to pay the tax. We have no hesitation in confirming the finding of the court below that the lease pleaded by the first defendant has not been proved. 8. As the first defendant is in possession and as the lease set up by him has not been proved, his possession of the properties must be unlawful and the plaintiff who admittedly has title to the properties is entitled to recover possession of the same from him with mesne profits. 9. The plaintiff respondent has filed a memorandum of cross objections regarding the decree awarding compensation for improvements. Exts. IX and X are respectively the report and account submitted by the commissioner deputed by the court for assessing improvements. Compensation has been allowed only in respect of those items which had come into existence after the date of the alleged trespass. We are not satisfied that the finding of the court below on this point requires modification. The memorandum of cross objections must therefore be dismissed with costs. 10. In the result the appeal and the memorandum of cross objections are both dismissed with costs.