KOCHU OUSEPH v. JOSEPH — 1976 DIGILAW 165 (KER)

Judgment :- 1. These appeals arise out of three suits O.S.Nos 309, 308 and 311 of 1962 of the Munsiff's Court, Trichur. In the three suits the plaintiff and defendants 2 to 4 are the same. The persons arrayed as the 1st defendant in the three suits are three brothers, one Thomas, One Varkey and one Chacko. The suits are for recovery of possession of the suit properties on the basis of title. In the first suit, the property involved is one acre in extent, in the second suit 75 cents and in the third one acre altogether coming to 2.75 acres. According to the plaint claim in each of the suits the properties belonged to the family of the plaintiff and were involved in the partition suit O. S.135 of 1109 of the Trichur District Court. By the decree passed in that suit the plaintiff's father is alleged to have obtained possession of the properties along with other items. It is the plaintiff's case that after the death of his father on 2411-1125 plaintiff along with his brothers were in possession of the properties. There was a suit against the plaintiff's father and others in the Trichur District Court as per O. S.10 of 1923 in which these properties were also involved. Advocate Sri A. F. Kakkappan had been appointed receiver in that proceedings. The receiver is said to have taken possession of the properties including the present suit properties and later entrusted the same to the plaintiff's brothers Anthappan and Paul under a lease arrangement. Plaintiff further contends that the lessees from the receiver granted licences to 1st defendant and some others to cultivate different portions of these properties with bananas, tapioca and other seasonal crops. Licences in respect of particular portions of the properties were not being granted to the same persons repeatedly but to different persons. Sri A. F. Kakkappan, advocate was subsequently removed from receivership and advocate Sri A. M. Sebastian was appointed in his place. The 1st defendant and others contended before him that the properties which they were cultivating were in their possession as lessees, the lease arrangement being with Rappai, the deceased father of the plaintiff entered years back. They denied possession under the receiver or receiver's lessee. The 1st defendant and others contended before him that the properties which they were cultivating were in their possession as lessees, the lease arrangement being with Rappai, the deceased father of the plaintiff entered years back. They denied possession under the receiver or receiver's lessee. Because of their obstruction the receiver sought orders from the court which directed the receiver to take bonds from the person in possession for safeguarding mesne profits of the properties. Pursuant to the court's order bonds were then taken from the 1st defendant and others. 2. In the partition between the plaintiff and his brothers the properties involved in the three suits were obtained by the plaintiff who subsequently moved the court for orders directing surrender of the properties from the persons in possession. This was objected to by the defendants according to whom they were lessees not under the receiver but were in possession under much earlier lease arrangements entered into with the plaintiff's father. They claimed fixity of tenure on the basis of subsequent land legislations. After hearing the parties, the court directed that if the plaintiff, if so advised he can file a suit to recover possession of the properties from persons in possession. It is pursuant to this direction that the present suits have been filed. The 2nd defendant in the suits is impleaded as person in possession under the 1st defendant and defendants 3 and 4 as assignees of the properties after the institution of the suits. The 4th defendant is the contesting defendant in all the three suits. 3. According to the 4th defendant the properties in all the three suits having the total extent of 2.75 acres were taken on lease by Varkey, and his brothers Thomas and Chacko for an annual rent of Rs. 55/- from Rappai, the deceased father of the plaintiff, in the year 112. It was subsequently that division was made between the 1st defendant and his brothers in which division, 1st defendant took 75 cents and Thomas and Chacko one acre ach. Thomas and Chacko assigned their rights to the 2nd defendant who in his turn assigned his rights to the 4th defendant in 1962 immediately after the suits were filed. 4th defendant claims to be in possession of the properties thereunder. Thomas and Chacko assigned their rights to the 2nd defendant who in his turn assigned his rights to the 4th defendant in 1962 immediately after the suits were filed. 4th defendant claims to be in possession of the properties thereunder. As per the contentions of the 4th defendant, the lease arrangement said to have been effected by the receiver in favour of the plaintiff's brothers are not said to be binding on the suit properties as the properties were already in the possession of the 1st defendant and his brothers under the earlier lease from the father. 4. The trial court dismissed the three suits finding that the defendants are tenants and plaintiff is not entitled to recover the properties on the basis of title. On appeal to the Subordinate Judge, Irinjalakuda, the learned Subordinate Judge reversed the judgment and decree of the trial court and the appellants were allowed to recover possession of the proportion in the three suits with mesne profits at the rate of Rs. 25/- per annum for each of the items in the plaint for the period claimed in the plaint. The plaintiff-appellant was found entitled to recover possession of the properties on deposit of value of improvements of Rs. 990/-. The plaintiff was also to get costs of the appeals as well as the costs in the lower court from the contesting 4th defendant. 5. The 4th defendant took up the matter in second appeal to this court in S.A. Nos. 760, 761 and 762 of 1969. The learned Single Judge who heard the matter was of opinion that the question involved in the appeals was purely one of appreciation of evidence, whether on the evidence adduced in the case the court should find that possession of the defendants must be traced to a licence granted by plaintiff's brother or whether it should be found that possession was with them even earlier. The court said that though the 4th defendant had set up a lease from the plaintiff's father even assuming that the 1st defendant fails to prove the lease, it will not necessarily follow that plaintiff is entitled to succeed. If defendants are shown to have been in possession of the properties prior to the date when plaintiff's brother Anthappan was said to have granted licence to them, then in so far as there is explanation for their earlier possession, plaintiff must lose. If defendants are shown to have been in possession of the properties prior to the date when plaintiff's brother Anthappan was said to have granted licence to them, then in so far as there is explanation for their earlier possession, plaintiff must lose. That is because, according to the learned judge, in that event, plaintiff would not have succeeded in proving possession within the period required to show subsisting title in him. It was said that the question involved in the appeals ultimately turns to be one whether the suit properties are those which went in to the possession of the receiver, those of which the defendants had no possession earlier. The learned judge reviewed the evidence in the matter and came to the conclusion that it is not possible to find that the holding of the property by the 1st defendant and his two brothers was under a licence arrangement. On that ground the learned judge held that on the evidence he finds that the plaintiff had not succeeded in establishing subsisting title to the properties in any of the suits. This resulted in the decrees of the court below being reversed and the suits being dismissed with costs throughout. 6. The plaintiff has now come up on special leave in these three appeals. When the matter came up before the Division Bench for hearing the court felt that the correctness of the decision of a Division Bench of this court reported in 1969 KLT. 362 on which the judgment under appeal can be sustained is doubted in the decision of a Full Bench of this court reported in 1971 KLT. 431 and therefore the cases were referred to a Full Bench for decision. 7. In Kalliyani v. Kalliyani (1969 KLT. 362) a Division Bench of this court consisting of Raman Nayar Ag. 362 on which the judgment under appeal can be sustained is doubted in the decision of a Full Bench of this court reported in 1971 KLT. 431 and therefore the cases were referred to a Full Bench for decision. 7. In Kalliyani v. Kalliyani (1969 KLT. 362) a Division Bench of this court consisting of Raman Nayar Ag. C. J. and Subramanian Poti, J., held that where the plaintiff alleges tenancy and the defendant admits the same or where the plaintiff or defendant alleges tenancy and such tenancy is proved, the suit may, in essence, be one between landlord and tenant, and in such a case though the plaintiff is not called on to prove possession within 12 years of suit he would nevertheless have to prove that the tenancy has been duly determined so as to entitle him to present possession, and in view of Art.139- Limitation Act of 1908-that this determination was within 12 years before the suit. But where one of the parties alleges a tenancy but it is not substantiated in evidence, the principle to be applied is not the one applicable to a suit between landlord and tenant in the matter of limitation. The court proceeded to state that the admission by the defendant in such a suit that he is a tenant may amount to an admission that when the tenancy was created the landlord was in possession, so that be could put the tenant in possession. If the tenancy alleged happens to be one which commenced within 12 years of the suit, plaintiff may succeed on the strength of title, taking the admission of the defendant as proving the possession of the plaintiff within 12 years. The court said that this principle cannot be extended to cases where the admission implied in a plea of tenancy relates to a period more than 12 years prior to the date of suit. 8. In coming to this conclusion the court did not think that there is anything in the decision of the Supreme court in Mt. Murthi v. Mohammed Mirkhan (AIR. 1965 SC. 875) that is against this view. 8. In coming to this conclusion the court did not think that there is anything in the decision of the Supreme court in Mt. Murthi v. Mohammed Mirkhan (AIR. 1965 SC. 875) that is against this view. Poti, J., speaking for the Bench said: "That was a suit for declaration of title, the plaintiff claiming that he was in possession of the land and praying in the alternative that if he is deemed to have been dispossessed by reason of earlier proceedings under S 144 of the Criminal Procedure Code, he may be given possession. Neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession of plaintiff. Their Lordships said in that case: "It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant's plea, and for the purpose of deciding whether Art.142 or Art.144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142, for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession." The question whether when the pleadings disclose a case of dispossession or discontinuance of possession by the plaintiff, Art.142 of the Limitation Act of 1908 will be attracted was not decided in the case before the Supreme Court." 9. However, in Pappy Amma v. Prabhakaran Nair (1971 KLT. 431) a Full Bench of this court pointed out: "As indicated already in Marimuthu Goundan v. Thambi 1960 KLJ.1304 the court said that if a defendant admits in the written statement that he is in possession as lessee of the plaintiff, the plaintiff has no burden to prove subsisting title in a suit for recovery of possession even though the lease set up by the defendant has been ultimately found against. In Kalliani v. Kalliani 1969 KLT. In Kalliani v. Kalliani 1969 KLT. 362 the court held that it is only when the defendant admits that he has taken the lease from the plaintiff within a period of 12 years from the date of the suit, that an admission of subsisting title of the plaintiff can be inferred, which would exonerate the plaintiff from the burden of proving it, and that an admission by the defendant that he is holding the property under a lease by the plaintiff more than 12 years before the date of the suit would not involve an admission of subsisting title of the plaintiff, so as to relieve him of the burden. Whether an admission that a defendant has taken a lease from the plaintiff within a period of 12 years of the date of the suit would per se amount to an admission of the possession of the plaintiff within a period of 12 years of the date of the suit is a matter on which we do not propose to express any final opinion. It might be that the property leased was not in the possession of the plaintiff at the time of the lease, but in the possession of a trespasser, and the lessee may take possession from trespasser by a suit or otherwise. In such of case it would be difficult to attribute possession to plaintiff on the date of the lease. Of course, if the admission was that the plaintiff leased the property of which he was in possession, it would imply an admission of subsisting title in the plaintiff. The learned Single judge relied on Marimuthu Goundan v. Thambi 1960 KLJ.1304 and said that since the 1st defendant claimed in the written statement to be a lessee of the plaintiff, it was unnecessary for the plaintiff to have proved a subsisting title. Whether in a case where the lease set up in the written statement is not proved at the trial, the admission in the written statement can be taken as an admission of a subsisting title so as to relieve the plaintiff of the burden of proof is a matter on which also we do not propose to express any opinion. Whether in a case where the lease set up in the written statement is not proved at the trial, the admission in the written statement can be taken as an admission of a subsisting title so as to relieve the plaintiff of the burden of proof is a matter on which also we do not propose to express any opinion. If the assumption in Marimuthu Goundan v. Thambi 1960 KLJ.1304 that an admission of a subsisting lease in the written statement would relieve the plaintiff of the burden of proving subsisting title is correct, though the lease set up is found against at the trial, then, there might be difficulty in appreciating the distinction made in Kalliani v. Kalliani 1969 KLT. 362 between a case where the lease set up is one which originated within 12 years of the date of the suit and one which originated beyond 12 years. In other words, the question is which is the admission relied on to relieve the plaintiff from the burden of proving subsisting title. If the admission relied on for the purpose is the admission in the written statement that the defendant was a lessee on the date of the suit, and has therefore admitted that the plaintiff was in constructive possession on the date of the institution of the suit, then perhaps there might be no logic in saying that the lease must have originated within 12 years of the suit. Apparently Marimuthu Goundan v. Thambi 1960 KLJ.1304 proceeded on the basis of the admission in the written statement that the defendant therein was in possession as lessee on the date of the suit, and not on the basis that the lease set up was one granted to the defendant within 12 years of the suit. Even if the lease set up was one granted before 12 years of the date of the suit, if the allegation in the written statement is that the defendant continued in possession under the lease when the suit was filed, it might be difficult to say that there was no admission on the part of the defendant that the plaintiff was in possession within a period of 12 years of the date of the suit. However, we do not think it necessary for disposing of this case to make any final pronouncement on these questions, as we have already accepted the finding of the learned single judge that the plaintiff was in possession till the Ist defendant was appointed receiver in 1952." 10. It is necessary in the circumstances to examine the basis of the decision in Marimuthu Goundan v. Thambi (1960 KLJ.1304) which is also a decision of a Division Bench of this court. That was a case where the 1st defendant was the appellant. The appeal arose from a decree of a suit in ejectment. The plaintiff's case was that he obtained title to the properties under a partition deed 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 1st 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 certain amount to the 1st defendant as value of improvements. The 1st defendant then preferred an appeal from the decree and the plaintiff a memorandum of cross-objections objecting to the decree awarding compensation for improvements. The first point raised in the suit by the appellant was that the suit being one 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. On this contention the court said: "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 Art.142 of the Limitation Act. The possession of a lessee is possession of the owner for purposes of Art.142 of the Limitation Act. We may in this connection refer to the decision in Narasingh 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." 11. It is a fundamental principle that possession is presumptive evidence of title. In Asher v. Whilock (1865 L.R..1 QB.1) Cockburn, C. J., observed, "I take it to be established by authority that possession is good against all the world except the person who can show a better title than one in possession". It is therefore necessary in every suit for possession, that the plaintiff should have a better title than that of the defendant. In other words, he must succeed on the strength of his own title and not on the weakness of the defendant's case. Proof of proprietary title on the part of the plaintiff would certainly be a better title than that of a defendant who is merely in possession of the property and is not able to refer his possession on any legal basis. However, the mere fact that the plaintiff in a suit for possession shows a better title, proprietary or possessory, than that of the defendant will not necessarily entitle the plaintiff to get a decree for possession against the defendant. For, it is another basic principle that it is the obligation of the plaintiff in every case to show that his action or suit is not barred by limitation. That is why S.3 of the Limitation Act makes the question of Limitation a material one for determination in every case, whether or not the point has been raised by the parties see AIR. 1964 SC. 1336 where the bar of limitation appears on the face of the proceedings, the court is bound under the section to go into the question, of it own accord, although not raised by the parties. 12. 1964 SC. 1336 where the bar of limitation appears on the face of the proceedings, the court is bound under the section to go into the question, of it own accord, although not raised by the parties. 12. In cases falling under Art.142 of the Limitation Act of 1908, in regard to suits where the plaintiff comes forward with the allegation that while in possession he was dispossessed or had discontinued possession, and the action is for possession, the onus in such cases would be for the plaintiff to show (1) that he had a title to possession, whether a possessory or proprietary one, which is superior to that of the defendant, and (2) that his dispossession or discontinuance of possession was within twelve years of the suit. Or in other words that he was in possession within twelve years of the suit. Lord Justice Turner in Maharajah Koowur Baboo Nitrasur Singh v. Baboo Nand Loll Singh (1860) 8 Moo Ind App 199) in delivering the judgment of the Privy Council observed as follows: "The appellant is seeking to disturb the possession admitted to have existed for about eleven years, of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him (for that is the way in which the Regulation puts it) on a dispossession within twelve years next before the commencement of the suit, and, therefore, that he, or some person through whom he claims, was in possession during that period. No proof of anterior title, such as would be involved in the decision of the boundary question in his favour, can relieve him from this burden, or shift it upon his adversaries by compelling them to prove the time and manner of dispossession. The lands in question may have been part of Mouzah Gopaulpore and as such may have been enjoyed by his ancestor, and yet he may have lost by lapse of time, his right to recover them." 13. The position will be different where the plaintiff does not admit the defendant to be a tenant of his and sues as a proprietor to recover the land and the defendant sets up a tenancy right under the plaintiff. The position will be different where the plaintiff does not admit the defendant to be a tenant of his and sues as a proprietor to recover the land and the defendant sets up a tenancy right under the plaintiff. In such a case the plaintiff has not to prove anything, because the admitted paramount title carries with it a presumption that the plaintiff is entitled to hold and possess the land and therefore the person seeking to defeat that right and claiming to hold under him must establish the right so asserted by him see AIR. 1958 Pat. 386 F B. Jaldhari Mahto v. Rajendra Singh As the Patna High Court points out this presumption of law was re-cognised by the Privy Council in the case of Lakshmana v. Venkiteswaralu AIR. 1949 PC. 278) as will appear from the following observations: "Their Lordships may here observe that in shifting the burden from one side to. the other by adducing evidence, parties may rely on presumption 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 interest, 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." 14. In Mt. Murti Dusadhin v. Mohammed Mir Khan (AIR. 1965 SC. 875) the Supreme Court said: "Another case cited by the learned counsel for the appellant is Lakshmana v. Venkateshwarlu 76 Ind App 202, in which the Privy Council reviewed most of its earlier decisions on this branch of the law. In this case, a holder of a minor inam sued to eject the tenants from the holding, and the Privy Council held that the burden was on the plaintiff to make out a right by proving that the grant included both the melvaram and kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease. One of the cases referred to is Seturatnam Aiyer v. Venkatachala Gounder 47 Ind App 76 and with reference to it the Board observed at p. 224 (of Ind App) at pp. One of the cases referred to is Seturatnam Aiyer v. Venkatachala Gounder 47 Ind App 76 and with reference to it the Board observed at p. 224 (of Ind App) at pp. 286-287 of AIR) as follows: "In the above case it was either admitted or found as a fact that the tenants had been let into possession by the landlord who was the absolute owner. When the tenant claims rights of occupancy in such circumstances their lordships, in Natnapillai Marakayar v. Ramanathan Chettiar (AIR 942 PC 65) laid down the principle that the burden will be on him to prove that he has such rights." Is the position the same when the plaintiff does not admit any tenancy but the defendant alleges tenancy but of a permanent nature? It seems to us that if a defendant not only admits title of the plaintiff but also admits that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant's plea, and for the purpose of deciding whether Art.142 or 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Art.142 for neither the plaintiff nor the defendant alleges dispossession or discontinuation of possession." Therefore, we think the Division Bench of this court in Marimuthu Goundan v. Thambi 1960 KLJ.1304 has laid down the correct law in holding that when the owner of the land seeks recovery of possession and the defendant puts forward a plea that he is in possession as a lessee under the plaintiff or his predecessor in interest, there is no necessity for the plaintiff to prove possession within twelve years. 15. It is difficult to appreciate the distinction made in Kalliani v. Kalliani 1969 KLT. 362 between a case where the lease set up is one which originated within 12 years of the date of the suit and one which originated beyond 12 years. As Justice Mathew said in 1971 KLT. 15. It is difficult to appreciate the distinction made in Kalliani v. Kalliani 1969 KLT. 362 between a case where the lease set up is one which originated within 12 years of the date of the suit and one which originated beyond 12 years. As Justice Mathew said in 1971 KLT. 431, if the admission relied on for the purpose of relieving the plaintiff from the burden of proving subsisting title is the admission in the written statement that the defendant was a lessee on the date of the suit, and has therefore admitted that the plaintiff was in constructive possession on the date of the institution of the suit, there might be no logic in saying that the lease must have originated within 12 years of the suit. We hold that the principle laid down in Marimuthu Goundan v. Thambi is applicable in all cases where in defence to a suit for recovery of possession on the strength of the plaintiff's title it is contended by the defendant that he is holding the property as lessee under the plaintiff irrespective of whether the lease set up by the defendant originated within or beyond the period of 12 years from the date of suit. With respect we hold that the observations in Kalliani v. Kalliani to the effect that if the lease set up by the defendant happens to be one which originated more than 12 years prior to the date of the suit, the plaintiff is not absolved from the necessity to prove possession within 12 years under Art.142 of the Limitation Act, do not lay down the correct legal position. 16. If, therefore, the burden is on the defendants to prove the lease set up by the them then we are afraid the approach made by the learned Single Judge is not correct. As pointed out by the learned Subordinate judge the case of the defendants regarding the lease arrangement is inconsistent and improbable. The kychit Ex-P3 was executed by the Ist defendant in O.S. 308/62 on 25-10-58 in respect of 75 cents of property comprised in Sy. 1059 and 1063. The recital in this document is that be took 75 cents of property, on lease from the original owner Rappai about 12 years back for an annual rent of Rs. 15/-. The kychit Ex-P3 was executed by the Ist defendant in O.S. 308/62 on 25-10-58 in respect of 75 cents of property comprised in Sy. 1059 and 1063. The recital in this document is that be took 75 cents of property, on lease from the original owner Rappai about 12 years back for an annual rent of Rs. 15/-. Ext.P4 has been executed by the 1st defendant, (in O. S.311/62) Chacko, regarding 1 acre of property comprised in Sy. 1063 and the recital in this document is that the property was taken on lease about 12 years back for an annual rent of Rs. 20/- from the original owner Rappai. Similarly, Ex- P5 is executed by the 1st defendant, (in O S.309/62) Thomas and the recital in this kychit is that the property was taken on lease from Rappai about 12 years back for an annual rent of Rs. 20/-. The total extent covered by Exs-P3, P4 and P5 is 2 acres and 75 cents. The recitals in Exs-P3, P4 and P5 show that separate leases were taken from the original owner about 12 years prior to the execution of the kychits. Therefore, the lease must have been taken some time in the year 1945 or 1946. The executant of Ex-P3 must have been aged only 15 or 16 years at the time of taking the lease. Chacko the executant of Ex-P4 must have been only 7 or 8 years old at the time of the alleged lease and Thomas only 12 years old. Therefore the lease arrangements set up up in favour of minors are highly improbable. The learned Subordinate Judge is correct in pointing out that the kychits were executed at a time when steps were being taken for passing tenancy legislation, granting permanency of right, even to licensees who cultivate the properties. 17. In the written statement the lease arrangement set up is regarding the entire 2 acres and 75 cents and the annual rent is Rs. 55/-. This contention is clearly against the recitals in Exs-P3, P4 and P5. At the time of evidence the version given is that the lease was taken by four brothers, though in their written statement what was stated is that the lease was taken by the three brothers. 55/-. This contention is clearly against the recitals in Exs-P3, P4 and P5. At the time of evidence the version given is that the lease was taken by four brothers, though in their written statement what was stated is that the lease was taken by the three brothers. The 4th defendant in his written statement states that the entire property was in the joint possession and was being jointly cultivated by the three brothers Dw 1 states that the leasehold right was originally joint; but it was partitioned sometime in the year 1957. He also states that the 2nd defendant is also a lessee of the property; but no such case is set up in the written statement. Therefore, the Subordinate Judge is correct in stating that the defendants have no consistent case regarding the lease claimed by them. In the sale deed in favour of the 4th defendant the recital is that the 1st defendant Varkey and his brothers Chacko and Thomas took separate lease arrangements regarding portions of the property in 1121 and they were in separate possession. It is stated therein that the 2nd defendant obtained possession of the property from Varkey, Chacko and Thomas for the purpose of enjoyment, after payment of consideration, in pursuance of unregistered agreements. These agreements are not produced in court. It is this right of enjoyment that is alleged to have been sold to 4th defendant under Ex-D8. 18. The plaintiff as Pw1 has given evidence that the property was in the direct possession of his family till the date on which the Receiver took possession of the property. He also states that the Receiver Sri Kakkappan afterwards entrusted the property to his brother Anthappan as per directions of the court. His evidence would further indicate that the 1st defendant and his brothers were allowed only to cultivate portions of the property as licensees and that the claim for leasehold was first set up by them when the first receiver was removed and Sri A.M. Sebastian took charge as Receiver. The documents produced in the case would also show that in pursuance of orders of court, Receiver Sri.A.F. Kakkappan gave possession of the Mangamchira properties to Anthappan and his brothers for the purpose of cultivation. The documents produced in the case would also show that in pursuance of orders of court, Receiver Sri.A.F. Kakkappan gave possession of the Mangamchira properties to Anthappan and his brothers for the purpose of cultivation. pw 2 has given evidence that he took possession of the plaint schedule properties and that he allowed the 1st defendant and his brothers to cultivate portions of the property as licensees. He also states that 1st defendant and his brothers had never any leasehold right in respect of the property as claimed by them. A. F. Kakkappan as pw. 3 has stated that he took possession of the Mangamchira properties which included the plaint schedule properties. The learned Single Judge has dealt with extensively the report of the Receiver Sri Kakkappan Ex-D1 and came to the conclusion that from the report it cannot be said that the suit items were also taken possession of by the Receiver. His Lordship (learned Single Judge) states: "This report indicates that 34 items of properties were outstanding with the lessee on the day when the receiver went to verify possession of the properties. Of these notices for payment of rent was issued to 16 lessees only. No such notice is said to have been served on the other 18 lessees. There is nothing produced in the case which would indicate that at any time either surrender was obtained from 18 lessees or any other arrangement was entered into with them. The attempt of counsel for the respondent-plaintiff before me was to show that though 34 items remained in the possession of lessees, they were items of properties in the other villages and not in Panamcheri village. That apparently is not very clear. This statement as to possession of 34 items follows the mention of title to 88 items. That again appears where possession of the Mandamchira properties are mentioned. Therefore, in the order of sequence it may perhaps refer to the properties at Mandamchira in which case the reference must include the suit properties Even assuming that it does not particularly refer to properties in Panamchira village alone, so long as it is not shown which are the items covered by the lease, it cannot be taken that Ex-DI report, and Ex-Pi report which followed it indicate that the receiver had taken possession of the suit item. Admittedly a good number of items of Rappai were in the hands of lessees and these items are not shown to have been taken possession of. If that be the case, it is wrong to assume that all items of Rappai were taken possession of by the receiver and for that reason the plaint items were also taken possession of The approach to the case by the court below being that Ex-D1 and Ex-P1 and even subsequent reports indicate that suit properties have also been taken possession of, the matter has to be considered afresh. This approach, for the reason I have pointed out here, is clearly wrong. No such assumption is possible It is a matter for proof. It must be shown that the suit items were also taken possession of. Proof of this there is none which would be sufficient for the court to act upon, as I will presently show." To a great extent the discussion of this matter reveals that the learned judge has based his conclusion on the premises that the plaintiff will have to prove his subsisting title. We have said that it is for the defendants who set up the lease to prove the same so long as the paramount title is not disputed. We find no reason to differ from the view taken by the learned Subordinate Judge, after an elaborate discussion of the oral and documentary evidence in the case. We set aside the judgment and decrees in SA. Nos. 760, 761 and 762 of 1969 and restore the judgment and decrees of the court below with costs.Allowed.