Vaidhyanathaswamy v. Lekshmi Amma — 1962 DIGILAW 163 (KER)

Judgment :- 1. The appellants herein are the Deity and the managing trustee of a temple in Mangalore, who have sued for declaration of title and recovery of a compound of 13 cents and the buildings thereon, situate in Mithranandapuram in the Fort area in the City of Trivandrum. The evidence on record indicates that a group of Pottis from Mangalore area used to go to the City of Trivandrum to officiate as priests in various temples there, and that the suit property had been acquired for their residence in the name of the aforesaid Deity, and used to be let to members of the group on rent. 2. According to the plaintiffs, when Belippa Narayanan Potti was their local agent to look after the suit property, he let it to Padmanabhan Potti, from whom it passed to his widow, the 1st defendant, and she has sub-let one of the buildings on the property to the 2nd defendant. As the 1st defendant has lately begun to deny the title of the Deity, the plaintiffs have Instituted the suit to resume the property from her. The defendants asserted title to the suit property in the 1st defendant by reason of adverse possession that she and her late husband had from 1085 M.E. (1910 A.D.), and claimed compensation for their improvements in case of eviction therefrom. The Munsiff found title with the plaintiffs and decreed the suit; but the Subordinate Judge, on appeal, while confirming the plaintiff's title to the property, held possession within 12 years prior to the institution of the suit not been made out and therefore dismissed the suit. Hence this second appeal by the plaintiffs. 3. The title of the Deity to the suit property has been concurrently found by the courts below on the basis of Ext. G, a judgment of the erstwhile High Court of Travancore dated September 9, 1905, allowing the Deity to resume the property from the then tenants thereon; and that finding of fact, is conclusive in this second appeal. Ext. H is a registered lease deed dated October 13, 1905, executed by one Subrayan Potti in which there is a clear recital that he has been given possession of the compound and the buildings as tenant thereof. Though no records have been produced to prove any execution having been taken on Ext. G judgment, Ext. Ext. H is a registered lease deed dated October 13, 1905, executed by one Subrayan Potti in which there is a clear recital that he has been given possession of the compound and the buildings as tenant thereof. Though no records have been produced to prove any execution having been taken on Ext. G judgment, Ext. H does show that subsequent thereto the plaintiffs got possession of the property and let it out to a tenant. Pw. 3, another member of the community, aged above 75 years, has sworn to Subrayan Potti having resided in the suit property under Ext. H, before it was let to the 1st defendant's husband. 4. Ext. J is an agreement executed between Pw. 2 and Belippa Narayanan Potti on March 19,1922, for repairing and deepening a well in the suit property for a consideration of Rs. 150/-. Pw. 2, the contractor, has identified the suit property as that in which the well mentioned in Ext. J was situate. Ext. J bears attestation by the 1st defendant's husband. If the 1st defendant's case that her husband, Padmanabhan Potti, held the property adversely to the Devaswom from 1910 onwards it is inconceivable how he could have allowed Belippa Narayanan Potti in 1922 to repair and deepen a well in the property. The circumstances show clearly that Padmanabhan Potti had no idea of holding the property adversely to the Deity but was in permissive possession thereof. 5. There is no evidence in this case as to when the tenancy of Padmanabhan Potti came to be, and on what terms. Counsel for the defence contended that, as such necessary details about the tenancy have not been given, the averment of tenancy should not be found and acted upon by the Court. But, much the same vagueness was in the case which came up before the Supreme Court in Manohar Das v. Charu Chandra Pal (AIR. 1955 SC. 228). The plaintiff therein sued for recovery or assessment of fair rent of the property in the occupation of the defendants, alleging that the same had been let to their predecessor on a rental arrangement 200 years ago and that the defendants, having secured an entry in the Record of Rights, published in 1931, that the land was rent-free, disclaimed the plaintiff's title to get rent or to resume the property. The defendants contended that they and their predecessors having been in possession of the property in assertion of an adverse title for over 200 years have excluded the plaintiff's title thereto. Neither the exact date of the tenancy nor the terms thereof were alleged or proved by the plaintiff in that case. The Supreme Court found the defendants and their predecessors in possession of the property for a considerable length of time without payment of rent, and yet granted a decree for assessment of fair rent to the plaintiff. It is a precedent that in suits instituted long after the grant of a demise, the non-mention of the terms of the demise or of the exact date of the demise is not a fatal defect, and that if it be found that the defendants were let into the property by or on behalf of the plaintiff, the plaintiff's title would not be lost by their long possession even without payment of rent unless exclusion of the plaintiff from the property to his knowledge for 12 years preceding the suit be made out by the defendants. There is no proof in this case that at any time beyond 12 years prior to the institution of the suit, the 1st defendant or her husband or anybody on her behalf had denied the plaintiffs' title or asserted an adverse title to the knowledge of the plaintiff. 6. Counsel for the defendants laid great stress on the fact that the aforesaid Belippa Narayanan Potti towards the end of his life asserted a title to the property in himself independent of the plaintiff-Devaswom and executed a will in favour of his sons, present defendants 3 to 6, who on the basis of that will applied for mutation of the property in their names. That Belippa Narayanan Potti was looking after this property is clear from Ext. J. Apart from the will, of which no evidence is given in this case, there is nothing to show that he had asserted a title adverse to the Devaswom at any time during his life to the knowledge of the Devaswom. That Belippa Narayanan Potti was looking after this property is clear from Ext. J. Apart from the will, of which no evidence is given in this case, there is nothing to show that he had asserted a title adverse to the Devaswom at any time during his life to the knowledge of the Devaswom. Even if the averment as to the will be true, the fact that he changed his mind towards the end of his life and wanted to secure the property to his heirs, unless a prescriptive title following the same is made out, is of no consequence in this suit. Defendants 3 to 6, the sons of Belippa Narayanan Potti, do not challenge the plaintiffs' claim in this suit, but have filed a formal written statement supporting the same. Hence there is no force in the contention that the plaintiffs have not proved the representative capacity of Belippa Narayanan Potti to let out the property. 7. The Subordinate Judge, after finding title with the plaintiffs, has dismissed the suit on the ground that the plaintiffs have not proved their possession of the property within 12 years before the institution of the suit. The material question is how far he was correct in that view. 8. It has become a maxim that, in suits for ejectment, the plaintiff has to prove not only his antecedent title but also his possession within a period of 12 years prior to the institution of the suit, which period may conveniently be referred to hereinafter as "the statutory period". Of late a great enthusiasm is seen in many in the subordinate judiciary to call the rule in aid whenever the suit is for recovery of landed property. It is to be remembered that the proposition, though well-settled, is not of universal application and that its applicability to a particular case would depend largely on the facts and circumstances thereof. The hardships and inequities that came to light in the application of the rule to particular circumstances have compelled recognition of several exceptions to it. Thus, for instance, Dawson Miller C. J., in Raja Shiva Prasad Singh v. Hira Singh (AIR. The hardships and inequities that came to light in the application of the rule to particular circumstances have compelled recognition of several exceptions to it. Thus, for instance, Dawson Miller C. J., in Raja Shiva Prasad Singh v. Hira Singh (AIR. 1921 Patna 237 F.B.) was for a strict application of the rule when he observed: "In a suit for ejectment on the ground of wrongful dispossession the plaintiff must prove possession on the part of himself or those through whom he claims within the period of limitation, and that he does not discharge the burden merely by establishing his title and proving the enjoyment at some period beyond 12 years from the commencement of the suit, because, as was pointed out, he may still have lost by lapse of time his right to recovery. It would seem to follow as a necessary conclusion from this principle that where there is no evidence of plaintiffs possession during the limitation period the suit must fail for want of proof, even if he should establish his title at some earlier period coupled with enjoyment." Soon thereafter, a case where, on a finding of title and possession with the plaintiff before, but not within, the statutory period, the District Judge gave him decree on the ground that the defendant failed to prove adverse possession for 19 years, and on appeal Ross, J. reversed the same on the ground "it was not open to the District Judge to take into account either the probabilities of the case or any presumption that might arise in favour of possession remaining in the person who had proved his title", came up in Letters Patent Appeal in Tian Sahu v. Mulchand Sahu (AIR. 1922 Patna 432) when the learned Chief Justice had to lay down an exception to the rule and hold that if the evidence on both sides as to possession within 12 years is equally strong, or not altogether satisfactory, so that it is difficult to determine where the truth lies the presumption that possession goes with title may assist the court in coming to a conclusion in favour of the plaintiff who has the title. Again, in Ramnath Sarangi v. Gobardhan Pandey (AIR. 1924 Pat. 629) where the subject-matter of the suit for recovery was certain gora lands, ie,. Again, in Ramnath Sarangi v. Gobardhan Pandey (AIR. 1924 Pat. 629) where the subject-matter of the suit for recovery was certain gora lands, ie,. "lands not brought under regular cultivation but which are from time to time, once in four or five years subject to cultivation of certain classes of crops", the learned Chief justice explained further the Full Bench dictum and observed: "... Where the land is jungle land or land under water where no evidence of actual user in the ordinary sense can be expected to be adduced then no doubt the presumption that possession follows title may be called in aid to supplement the absence of evidence upon the question of possession because mere non-user does not in itself deprive a party of his title to his land. It is necessary both that he should have lost his possession and that somebody else should have come into possession and remained there adversely to him." and added it... not only in cases where the evidence was strong on both sides but in cases where the evidence is such as might be believed but is also weak in both cases the court having a difficulty in arriving at a satisfactory conclusion of where the truth lies may take into consideration the presumption arising from title as well as the other probabilities in the case." 9. I do not propose to enter a detailed analysis of the long catena of decisions on the matter, but would indicate that the following propositions are apposite in suits in ejectment: viz., I. The plaintiff is bound to prove that he has title to the land in suit, and was in possession thereof at some time within 12 years prior to the institution of the suit. The reason for this rule is that the plaintiff in every case has to show that his cause of action is not barred by the statute of limitation. Art.142 of the Limitation Act enacts that in suits 'for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession' he has to institute the suit within 12 years from the date of the dispossession or discontinuance. Art.142 of the Limitation Act enacts that in suits 'for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession' he has to institute the suit within 12 years from the date of the dispossession or discontinuance. Hence, if the cause of action be his dispossession or discontinuance of possession of property, which is thereafter in the possession of the defendant, he has to show that he came within the period allowed by the above Article, or, in other words, that his possession or discontinuance of possession was within the statutory period. See Maharaja Koowar Baboo v. Nitrasur Singh (8 M.I.A. 199) and Mohima Chunder Mazoomdar v. Mahesh Chunder Neogi (16 I.A. 23). II. But in the discharge of the aforesaid onus, the plaintiff can take advantage of any legal presumption in his favour. See the observations of the Judicial Committee in Lakshmanna v. Venkateswarlu (AIR. 1949 P. C. 278), "Their Lordships may here observe that in shifting the burden from one side to the other by adducing evidence, parties may rely on presumptions in law, which are really inferences of fact, in place of actual facts. If there was a presumption in law that an Inamdar was the owner of both kudivaram and melvaram interests in the land then he could rely on that presumption to discharge the initial burden of proof that lay on him to prove his title to eject. In this sense the presumptions arising from law are connected with the question of onus of proof." III. The law presumes continuity of an established state of things. If a landowner is found to be in unchallenged possession of his land at some time before the statutory period his possession would be presumed to have continued till he is shown to have been dispossessed by someone. In Nathoo Lal v. Durga Prasad (AIR. 1954 S.C. 355) our Supreme Court observed: "It has been found by the courts below that the plaintiff was in possession of this house even during the lifetime of Luxmi (the plaintiff's predecessor-in-interest) and continued in possession thereafter. Even if the tenant vacated the house on the 24th August 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by someone. Even if the tenant vacated the house on the 24th August 1933, and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by someone. The law presumes in favour of continuity of possession." This presumption will particularly govern cases where the plaintiff-landowner is shown to have been in possession at some time before the statutory period and the defendant to have come into possession within the statutory period but there is no evidence as to who was in actual possession in the interval. See Nathoo Lal v. Durga Prasad (AIR. 1954 S. C. 355), Rajcoomar Roy. v. Gobind Chunder Roy (19 I.A. 140) and Secretary of State for India v. Krishnamoni Gupta (29 I.A. 104). IV. The law presumes that possession follows title. Law being the expression of the common will of the community, the normal conduct of citizens is presumed to be in accordance with the legal order. The law therefore presumes the landowner to be in possession of his lands, and leaves the person who asserts the contrary to prove the truth of his assertion. "The ordinary presumption would be that possession went with title" declared the Privy Council in Runjeet Ram Panday v. Gobardhun Ram Panday (20 W.R. 25). This presumption has been ruled to govern the following cases, namely, 1. Where the evidence as to possession is equally strong and apparently well balanced on both sides so that it is difficult to determine where the truth lies. - See Runjeet Ram Panday v. Gobardhun Ram Panday (20 W.R. 25 P.C.), Tian Sahu v. Mulchand Sahu (AIR. 1922 Patna 432) and Jaldhari Mahto v. Rajendra Singh (AIR. 1958 Patna 386 F. B.) 2. Where the evidence on both sides is weak or unsatisfactory - See Ramnath Sarangi v. Gobardhan Panday (AIR. 1924 Patna 629). 3. Where the land is of such a nature that the evidence of actual possession in the ordinary manner could hardly be expected, for example, (i) Waste lands not brought under cultivation or effective enjoyment - See Ramanathan Chettiar v. Lakshmanan Chettiar (AIR. 1931 Mad. 1924 Patna 629). 3. Where the land is of such a nature that the evidence of actual possession in the ordinary manner could hardly be expected, for example, (i) Waste lands not brought under cultivation or effective enjoyment - See Ramanathan Chettiar v. Lakshmanan Chettiar (AIR. 1931 Mad. 644) - Where a building site has not been in effective enjoyment of any before 1919 which was two years before suit, it was held "when each party who claims possession is unable to prove any act of effective possession and therefore the normal method of possession is not referable to any such act, possession must follow title, since the defendants are no more able than the plaintiff to claim effective possession for 12 years before suit. Possession in such circumstances is with the party holding title." See also Kayichamkandi Ayissa v. Variyil Kunhai Kalanthan (AIR. 1948 Mad. 420) and Sheo Kali Kuar v. Jaleba Kuar (AIR. 1948 All. 56). (ii) Jungle lands - See Dharani Kanta Lahiri Chowdhury v. Garbar Ali Khan (17 C.W.N. 389 P.C.), Kuthali Moothavar v. Peringati Kunharankutty (48 I.A. 395) and Jaldhari Mahto v. Rajendra Singh (AIR. 1958 Pat. 386 F.B.) (iii) Bamboo clumps - See Badri Narain Jha v. Raghunandan Jha (AIR. 1948 Pat. 408). (iv) Lands incapable of cultivation like lands submerged in water - See Rajcoomar Roy v. Gobind Chunder Roy (19 I.A. 140), and Secretary of State for India v. Krishnamoni Gupta (29 I.A. 104). (v) Lands under gora or punam cultivation, that is, cultivated only once in five or six years and left fallow in other years - See Ramanath Sarangi v. Gobardhan Panday (AIR. 1924 Patna 629) and Kuthali Moothavar v. Peringati Kunharankutty (48 I.A. 395). (vi) Subsoil minerals - See Bhupendra Narayan Sinha v. Rajeswar Prosad Bhakat (58 I.A. 228). In Kashi Bai v. Sudha Rani Ghose (AIR. 1958 SC. 434), the Supreme Court applied this presumption to repel a claim of prescriptive title to a coal mine by adverse possession and observed: "What has been proved by the appellant is that the two inclines opened by Bennet were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner." Identical is the view of the Judicial Committee of the Privy Council expressed in Kumar Basanta Roy v. Secretary of State for India (44 I.A. 104). The principle is that adverse possession must rest on de facto use and occupation and that therefore there can be no continuance of adverse possession when land is not in actual use and enjoyment. Needless then to say that occasional acts of possession or enjoyment of the land by the landowner would be sufficient to destroy the adequacy and interrupt the continuity and exclusiveness demanded of a person in adverse possession. V. If the defendant or the person under whom he claims was once in possession of the property under permission of the plaintiff or his pre-decessor-in-interest, the defendant's possession would be presumed to be under the plaintiff and the burden would be on the defendant to prove his immunity from eviction. In Allah Rakhi v. Mohammad Abdul Rahim (61 I.A. 50) the defendants, who were given the enjoyment of certain properties as mujawars of a mosque, claimed right to continue in possession thereof even after their dismissal from that service, but their claim was dismissed by court in 1903. Subsequently, when the Sajjadanashin sued to evict them from the lands they claimed to have perfected title by adverse possession. Subsequently, when the Sajjadanashin sued to evict them from the lands they claimed to have perfected title by adverse possession. The Privy Council held: "In considering the effect of this continued occupation of the lands it must be remembered that the mujawars, the predecessors of the appellant-defendants, had been let into possession of the lands in consideration of their services as attendants at the shrine of Ala-Uddin, and though they were dismissed from attendance at that shrine, they claimed to be entitled to render services and to collect fees, as mujawars, at the other two shrines in the village, and apparently they were permitted so to do. Their Lordships are of opinion that the facts relating to the period subsequent to the year 1903 are consistent with the occupation of the lands by the appellant-defendants being by the leave and licence of the Sajjadanashin, which was induced through the mujawars continuing to perform the services at two of the shrines in the village. There is no doubt that the title to the lands was in the plaintiff, and the onus was on the appellant-defendants to prove the adverse possession relied on." See also Daryasingh Harisingh v. Kalma Nihala (AIR. 1961 M.P.179). The reason for this rule is obvious. When a person is inducted on the property by or with the permission of the landowner, the latter is said to be in possession of the property exercised through the former. The occupation of the person thus let into the property is in law the possession of the landowner himself. It is then for the defendant to prove that he has asserted a title adverse to the landowner to his knowledge before the statutory period and thereby freed himself effectively from the above identification. VI. If the property demised by a landowner or part thereof has subsequently been in the adverse possession of a squatter for over 12 or 24 years, the landowner would still be entitled to evict the squatter on termination of the lease between himself and the lessee by a notice to quit, or acceptance of a surrender or otherwise. No question of plaintiff's possession within the statutory period would be relevant to such cases. No question of plaintiff's possession within the statutory period would be relevant to such cases. The reason for the above proposition is that the squatter's adverse possession can extinguish the lessee's rights against the squatter, but not against the landowner whose reversion or remainder will, on termination of the lease, open in effect entitling him to direct possession of the property. See Fairweather v. St. Marylebone Property Co Ltd., (1962,2 W.L.R. 1020 (H.L.)). Two adjoining properties, Nos. 311 and 315 belonged to one owner who built a shed in the back gardens with three-fourths of the shed in 315 and the remaining one-fourth and the entrance in 311. Subsequently the properties were leased to separate lessees for 99 years each. In 1920, the tenant of 311 occupied the entire shed and continued therein without interruption adversely to the tenant of 315. In 1959, the plaintiffs purchased 315 and obtained a surrender of the outstanding term of years from the lessee thereof; and in 1960, instituted the suit to evict the occupant from the part of the shed that was in their garden. The defendant contended that he could not, in any event, be evicted before the expiry of the term of the lease which he claimed by completion of adverse possession. The trial judge accepted the contention and dismissed the suit; but the Court of Appeal, by a majority of 2 to 1, decreed it. On further appeal to the House of Lords, Lord Radcliffe and Lord Banning repelled the squatter's claim to a leasehold interest in the shed for the outstanding term of years, and spoke of the squatter not being a statutory assignee or a successor-in-interest of the lessee, whom he dispossessed, of the term of years as continuing to inhere in the lessee even after his right to oust the squatter became barred by limitation, and of the surrender by the lessee having accelerated the reversion or remainder in the landowner and entitled his assignees, the plaintiffs, to evict the squatter within 12 years of such surrender. (It, is pertinent to note that S.16 of the English Limitation Act, 1939, which corresponds to S.28 of the Indian Act, 1908, runs "...at the expiration of the period prescribed by this Act for any person to bring an action to recover land ...the title of that person to the land ...shall be extinguished.") VII. (It, is pertinent to note that S.16 of the English Limitation Act, 1939, which corresponds to S.28 of the Indian Act, 1908, runs "...at the expiration of the period prescribed by this Act for any person to bring an action to recover land ...the title of that person to the land ...shall be extinguished.") VII. If the suit is in reality one to settle a boundary dispute, though framed as for ejectment from an encroachment of a narrow strip of land at the verge of the mutual boundary, the land on either side being admitted to be in the possession of the respective landowners, the decision would depend on title unless the defendant proves his prescriptive title by adverse possession in regard to the encroached land. The law presumes that holdings of land are in accordance with the divisions demarcated by the Statutory Survey Authorities who are enjoined by law to incorporate subdivisions or other lawful variations in the holdings and keep the Land Records up-to-date. Possession of land is therefore presumed to be coextensive with the relative survey divisions. The admission of possession of the plaintiff of his land will therefore be presumed to extend to every inch of the land in the relative survey division; and it would be for the defendant asserting a right contrary wise to prove that assertion. See Achuthan Unni v. Vally (1962 KLJ. 400), Damodara Panicker v. Ayyappan Kutty (S.A. No. 870 of 1958, since reported 1962, 2 KLR. 94) and the observations of the Privy Council in Maharajah Koowur Baboo v. Nitrasur Singh (8 M.I.A. 199). VIII. If the plaintiff is in possession and the antecedent title is with the defendant, the plaintiff cannot have a decree declaring title in his favour unless he proves adverse possession for the statutory period. The burden is not on the defendant to show possession within the statutory period to defeat the suit. VIII. If the plaintiff is in possession and the antecedent title is with the defendant, the plaintiff cannot have a decree declaring title in his favour unless he proves adverse possession for the statutory period. The burden is not on the defendant to show possession within the statutory period to defeat the suit. See Secretary of State for India in Council v. Chelikani Rama Rao (43 I.A. 192) where certain islands formed on the bed of the sea at the mouth of River Godavari were claimed by a Zamindar in adverse possession against the Crown, and the High Court of Madras held: "Though the title was originally in the Crown, still, as the possession of the claimants for 20 years prior to the notification (for afforestation) is found, it rests upon the Crown to prove that it has a subsisting title by showing that the possession of the claimants commenced or became adverse within the period of limitation, i. e. within 60 years before the notification." Their Lordships of the Judicial Committee identified the position of a claimant objecting to afforestation proceedings of Government land to that of a plaintiff in a suit for declaration of title to the land and charged him with the burden of proving his title by adverse possession for the statutory period, and observed: "Nothing is better settled than that the onus of establishing property by reason of possession for a certain requisite period lies upon the person asserting possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say, 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfill all the legal conditions'. Such a singular doctrine can be well illustrated by the case of India, in which the right of the Crown to vast tracts of territory, including not only islands arising from the sea, but great spaces of jungle lands, necessarily not under the close supervision of Government officers, would disappear because there would be no evidence available to establish the state of possession for sixty years past. It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession." It is pertinent to note that, in the above decision, the Privy Council observed that once antecedent title was found in a person he would be presumed to have a 'subsisting title' to the property until the other party proved a completed adverse possession. "But with reference to the 'subsisting title', it appears to their Lordships that nothing further is needed than the acknowledgment of the undisputed fact that these islands formed in the sea belonged to the Crown. That fact is fundamental: until adverse possession against the Crown is complete, that is to say, is for the period of sixty years, that fundamental fact remains, and that fact forms 'subsisting title'." 10. It having been found that Padmanabhan Potti, under whom the 1st defendant claims, was in permissive possession of the property under the plaintiffs, the burden is on the defendants to establish that they have perfected a title to the property by adverse possession for the statutory period. Evidence on record in this case does not establish it. The defence rested content with an assertion that the burden was on the plaintiffs to disprove adverse possession which they have not discharged. That assertion is obviously incorrect in law. In the result, in reversal of the decree of the Subordinate Judge, that of the Munsiff is restored with costs here and in the courts below. The right of the defendants to compensation for improvements, if any, effected by them on the suit property, which has not been adjudged by the courts below, is left open, in view of the provisions of Act 29 of 1958, to be decided when their eviction is sought in execution. Allowed.