1. The short question is, can a person who has put up a building in another's land, but is not in possession thereof, be given a decree for possession? And, but for the lower appellate court and the long and learned argument advanced in support thereof, I should have thought it unnecessary to say more than that he cannot.

2. The property in suit is a piece of land, 33 cents in extent, with a house on it. The land forms part of Survey No. 1814/A of Randamada Village. The whole of the survey field, which is 2.64 acres in extent, belonged at one time to the family of the plaintiffs and the plaintiffs claimed that the 33 cents of land in suit fell to their share in their family partition under Ext. P.3, dated 8th Edavam 1105 M. E. (21st May 1930 A. D). After thus getting the land, the plaintiffs built a house on it, and, on 1st November 1956, they orally let out the house to the 1st defendant on a monthly rent of Rs. 3 and the 1st defendant has since then been living in the property with his wife, the 2nd defendant, and his father, the 3rd defendant. However, in reply to a notice to quit issued by the plaintiffs, the 1st defendant denied the lease and set up title in himself. Hence the present suit, based on title, in which the plaintiffs claimed a decree declaring that they were entitled to and were in possession of the land and the building and for the recovery of the building from the hands of the defendants. The plaintiffs also asked that, in case it should be found that the defendants were in possession of any part of the land, they should also be given a decree for possession of that part.

3. The 1st defendant alone contested the suit the remaining two defendants may therefore be ignored and I shall hereafter refer to the 1st defendant as merely the defendant and his case was that the house in his occupation was not on the plaintiffs' land and that the suit property was not the property allotted to the plaintiffs in the partition under Ext. P-3. The house stands on the 11 cents of land allotted under the partition to another member of the plaintiffs' family, Raghavan Pillai by name. The defendant bought this land from Raghavan Pillai on 11th February 1952, built the house, and has been living in it since then. The house was not built by the plaintiffs. Neither the house nor the 11 cents of land on which it stands belonged to the plaintiffs and the lease set up by the plaintiffs is false.

4. The plaint furnished no particulars for locating the land in respect of which it was laid beyond saying that it was the land described in the 10th Schedule in the partition deed of 1105 M. E. (1929-30 AD.) But Ext. P-5, a rough sketch indicating its location was filed along with the plaint. In that sketch, the suit land, 33 cents in extent as claimed by the plaintiffs, was marked A, and the 11 cents allotted in the partition to the defendant's predecessor under 4th Schedule, was marked as B. A Commissioner was appointed for making a local inspection and locating the several shares allotted in the partition and reporting where the suit house stood. He made a perfectly useless inspection and submitted a perfectly useless report. He conceived it to be his duty only to ascertain and report whether the house in question fell in the plot marked A in the plaintiffs' plan, Ext. P-5, or in the plot marked B; and he reported that it was in the plot marked A, thus begging the very question in the suit, namely whether the plot marked A, which was the property which the plaintiffs claimed as theirs, was the property allotted to them in the partition. Surprisingly enough, on the basis of this report Ext. P 1 is the report, and Ext. P-2 a plan showing the location of the house as.lying outside the plot of the defendant on the assumption that Ext. P-5 was a correct plan the trial court found title in favour of the Plaintiffs. It also found that the house had been built by the plaintiffs but managed to disbelieve the lease set up by them, and, in