Grant of relief by Court on the basis of title.

This second appeal is against the judgment and decree of the District Judge, East Tanjore at Nagapattinam made in A.S.123 of 1987, reversing that of the District Munsif of Nagapattinam, in O.S. 262 of 1982. At the time of admission of the second appeal the following substantial question of law was framed : -

"Whether a valid marriage can be inferred from a mere recital of relationship in a document, in the absence of any proof of the form and ceremonies of marriage ?" *

The learned Judge, who admitted the appeal, directed the appeal to be posted on 20-6-1988 for final disposal. Consequently when the application for stay came up before me, I directed counsel on both sides to argue the appeal, and after some adjournments, the appeal was argued today.

2. The plaintiffs prayed for declaration of title to the suit property and for recovery of possession on the ground that they are the children of Thambithurai, who was the owner of the suit property. According to the plaintiffs, the suit property was leased to the defendant by Thambithurai. Thambithurai died in 1979 and the plaintiffs' mother Anjammal died in 1981. The plaintiffs claimed that after the death of Anjammal, they were the exclusive owners of the property and as the defendant is not acknowledging their title and is refusing to pay the rent in spite of demands, they had terminated the tenancy and sought for declaration of title and recovery of possession.

3. The defences raised by the defendant are that there was no relationship of landlord and tenant between Thambithurai and the defendant, that the plaintiffs were not the legal heirs of Thambithurai, that the superstructure belongs to the defendant, the land had been taken on lease from a temple benami for the benefit of the defendant in the name of Thambithurai, who was the maternal uncle of the defendant and that the defendant had prescribed title to the suit property by adverse possession.

4. The trial Court framed eight issues, covering the entire pleadings on both sides and gave the following findings :

1. The plaintiffs are not the legal heirs of Thambithurai.

2. There was no relationship of landlord and tenant between Thambithurai and the defendant.

3. The defendant had not perfected title to the suit property by adverse possession.

4. The superstructure belonged to Thambithurai and he was the lessee of the land and not to the defendant.

In view of the finding that the plaintiffs are not the legal heirs of Thambithurai, the suit was dismissed.

5. On appeal, the learned District Judge framed two points for consideration (i) Whether the plaintiffs are entitled to the suit property as legal heirs of deceased Thambithurai ? ( ii) Whether the defendant's claim to the suit property, either as a person who has put up the building or as a person, who has prescribed title by adverse possession is true ?

On the second point the learned District Judge found that the decision of the trial Court holding against the defendant was correct, and on the evidence, he could not differ from the findings given by the trial Court. On the first point, the learned District Judge differed from the finding of the trial Court and held that the plaintiffs are the legal heirs of Thambithurai as they had proved to the satisfaction of the Court that their mother Anjammal was the legally wedded wife of Thambithurai. Consequently, the learned District Judge granted a decree to the plaintiffs as prayed for by them.

6. In this second appeal, learned counsel for the appellant vehemently contends that the learned District Judge was wrong in granting a decree in favour of the plaintiffs, even assuming that they were the owners of the property, as they had failed to prove the landlord and tenant relationship between them and the defendant. According to learned counsel, once the plaintiffs come to Court with a definite case of tenancy, they have to fail if they do not establish that case. Reliance is placed by learned counsel on the decision of the Supre