The main legal point established is the significance of proving a lease claim and the impact of unlawful possession on the entitlement to recovery of possession.

T.K. Joseph, J.

1. This appeal arises from the decree in a suit in ejectment. The first defendant is the appellant.

2. The plaintiff's case was that he obtained title to the properties under a partition deed, Ext. C 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 first 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 sum of Rs. 505-10-0 to the first defendant as value of improvements. The first defendant has preferred the appeal from the decree and the plaintiff has filed a memorandum of cross objections, objecting to the decree awarding compensation for improvements.

3. A few facts which are admitted by both sides may be stated: The plaintiff is the son of Kanthaswamy Goundan. His father Perumal Goundan was the original owner of the properties. The properties were sold in execution of a decree against Perumal Goundan, who was at that time in jail, and were purchased by the decree holder Subramonia Iyer who assigned the same to Perumal Goundan's wife Marakkal and son Kanthaswamy. After Perumal Goundan returned from jail, Marakkal gave an assignment of her rights to Perumal Gouadan. An agreement Ext. D was executed in 1119 by Perumal Goundan and Kanthaswamy by which the properties were divided between them for enjoyment. There was a clause in the agreement Ext. D restraining alienation by either party. Perumal Goundan however assigned Ms share to the first defendant in 1120. Thereupon Kanthaswamy sued in O. S. No. 53 of 1120 for cancellation of the deed of assignment and during the pendency of the suit, the first defendant assigned the properties back to Perumal Goundan under Ext. A dated 20-7-1120. The suit was compromised and Ext. E dated 22-7-1120 is copy of the compromise petition. A decree followed on the basis of the compromise, and Ext. G dated 23-7-1120 is copy of the judgment. Perumal Goundan assigned his rights to the plaintiff in 1124 and there was a partition between the plaintiff and Kanthaswamy in 1123 evidenced by Ext. C where under the plaintiff obtained these properties. Perumal Goundan did not join in the execution of Ext. C but he attested the same. The plaintiff was a minor on the date of Ext. C and his maternal uncle was made his guardian by the deed of partition, Ext. C. The guardian Nachimuthu Goundan has instituted this suit as next-friend of the minor plaintiff.

4. The first point raised by the appellant is that this being a suit 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. 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 Article 142 of the Limitation Act. We may in this connection refer to the decision in Narsingh 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. Even apart from this, the question of onus of proof is only of academi