Judgement

Appeal (No. 85 of 1919) from a judgment and decree of the High Court (December 3, 1917) so far as it reversed a decree of the Subordinate Judge of Tellicherri.

The appellant sued to establish his title to certain land in Malabar containing thirty-four hills. His title to a group of ten of the hills was negatived by both Courts in India, and the present appeal related only to the remaining twenty-four hills.

The appellant was the head or karnavan of a Nayar tarwad, or family, in Malabar; he and his predecessors were referred to as the Kuthali Nayar. The defendant in the suit was, and the present respondent became on his death, the head or karnavan of a Moplah tarwad in the same district ; the distinctive name of that tarwad was Peringati.

The nature of the land in question, which had been subject to very little cultivation, and the other facts of the case appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the title of the plaintiff (appellant) to the twenty-four hills was established; he rejected the defendants claim to have acquired title by adverse possession. He accordingly made a decree in favour of the plaintiff.

The High Court reversed the decision so far as it related to the twenty-four hills. The learned judges (Abdur Rahim and Oldfield JJ.) did not expressly reverse the finding that the plaintiff had at one time a good title ; they however found that the defendant had made out a better case as to possession and decided in his favour on the issue as to limitation.

1921. June 23, 27, 28. De Gruyther K.C., Kenworthy Brown and Palat for the appellant. The appellants title to the twenty-four hills was established by the previous litigation, the effect of which was misconstrued in the High Court. The appellant does not admit that he is out of possession. The evidence did not show that the respondent had such exclusive and continuous possession over the whole land in dispute as was necessary to establish a title by adverse possession Secretary of State for India v. Chelikani Rao (L. R. 43 I. A. 192.) Radhamoni Debi v. Collector of Khulna (L. R. 27 I. A. 136.) ; Secretary of State for India v. Krishnamoni Gupta (( 1902) L. R. 29 I.

A. 104.) ; Lows v. Telford. (( 1876) 1 App. Cas. 414, 426.)

Hon. Sir William Finlay K.C. and Narasimham for the respondent. Neither the previous litigation nor the evidence in the suit established the appellants title to the disputed land. The evidence showed that the respondent had legally effective possession from 1870, and that after that date the appellant had no effective possession. The High Court rightly held he had a good title under the Indian Limitation Act, 1908. [Reference was also made to Mad. Act II. of 1864, s. 42.]

Kenworthy Brown replied.

1921. July 18. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a decree dated December 3, 1917, of the High Court of Judicature at Madras, which allowed in part an appeal from a decree dated March 20, 1916, of the Court of the Temporary Subordinate Judge of Tellicherri. The suit was brought by the present appellant to establish his title to thirty-four hills in the North Malabar district. The decree of the Subordinate Judge was in favour of the respondent with regard to ten of the hills, comprising, roughly stated, the north and north east portion of the group of thirty-four. No question is raised in this appeal with regard to those ten hills, it being conceded that the defendant has a title thereto.

The still outstanding issue between the parties, however, is as to the remaining group of hills, twenty-four in number, which may be said in general terms to form the southern half of the entire group which was originally in suit and to be bounded on the south by the Peruvanna River. With regard to those twenty-four hills, the decree of the Subordinate Judge was in favour of the plaintiff, while the judgment of the High Court favoured the defendant. The plainti