Judgement

Appeal (No. 53 of 1922) from a decree of the High Court (December 11, 1919) affirming a decree of the District Judge of South Canara (August 3, 1917), which affirmed a decree of the Subordinate Judge.

The questions for determination in the appeal were (1.) whether the appellant was entitled to a declaration against the respondent that certain kumri lands in South Canara belonged to his tarwad, and that the respondent was bound to issue to him pattas in respect thereof, and (2.) whether the suit was barred by limitation.

The facts appear from the judgment of the Judicial Committee.

The trial judge, the Subordinate Judge of South Canara, made a decree dismissing the suit, and that decree was affirmed by the District Judge. An appeal to the High Court was dismissed after further findings had been called for and submitted.

1924. Feb. 25, 26. De Gruyther K.C. and Narasimham for the appellant.

Dunne K.C. and Kenworthy Brown for the respondent.

Reference was made by the appellants counsel to Vyakunta Bapuji v. Government of Bombay (( 1875) 12 Bom. H.C. (O.C.J.) 1.), and to the Manual of South Canara District ( 1894), vol. i., pp. 123, 209, as well as to the two decisions as to kumris referred to in the judgment ; also to Baijnath Sahai v. Ramgut Singh (( 1896) L. R. 23 I. A. 45.) and Act I. of 1877, s. 42, as to when time began to run against the appellant under the Limitation Act.

April 7. The judgment of their Lordships was delivered by

MR. AMEER ALI. This appeal arises out of a suit brought by the plaintiff in the Court of the Subordinate Judge of South Canara on November 25, 1913, as the karnavan, or manager, of a Nair tarwad against the Secretary of State for India in Council for a declaration that certain lands situated in the forest tracts in the Kasargod Taluk belong exclusively to his tarwad, and for an injunction restraining the defendant from dealing in any manner with the said lands to the prejudice of the rights and possession of the plaintiffs tarwad.

Their Lordships will have to refer more specifically in the course of their judgment to the allegations in the plaint, but it is sufficient at this stage to indicate the scope of the suit. The defendant denied the title which the plaintiff put forward ; and the Subordinate Judge found that the plaintiff had totally failed to establish the grounds on which he based his claim, and accordingly dismissed the suit. The plaintiff preferred an appeal to the District Judge, who came to the same conclusion as the Court of first instance and accordingly affirmed the decree of the Subordinate Judge, dismissing the suit. There was a second appeal by the plaintiff from the decree of the District Judge to the High Court of Judicature at Madras which, apparently being of opinion that the District Judge had not sufficiently

Law. Rep. 51 Ind. App. 257 ( 1923- 1924) Kodoth Ambu Nair V. Secretary of State for India in Council 63

considered the evidence of possession adduced on the plaintiffs behalf, remanded the case for a fresh finding.

When the case came before the District Judge the second time he again examined the evidence thoroughly, almost meticulously, and came to the conclusion, as on the previous occasion, that the plaintiff had utterly failed to establish the three propositions on which he based his claim first, long possession ; secondly, prescription ; and thirdly, recognition by the defendant of the tarwads title working as an estoppel. He also found in concurrence with the Court of first instance that the suit was barred under the Limitation Act. If the suit is barred by limitation the question of title would not arise. But it appears to their Lordships that it will be more satisfactory to the parties that they should express their opinion on the question of title, before dealing with the question of limitation.

The case then went back to the High Court and the learned judges accepted, on January 29, 1920, the findings of the District Judge and dismissed the suit. Th