Presumption regarding ouster of one of the co-owners for statutory period.

The properties which are the subject-matter of this litigation belonged to one Gopalu, as his self-acquisitions. He had five sons and two daughters. One of the sons Ramiah died on 24th December, 1915, leaving behind his widow Seshammal. As a provision for her maintenance Gopalu settled on her one acre in Survey No.585/B which was of the total extent of two acres and six cents. The deed of settlement Exhibit P-8 provides that she would enjoy this property during her lifetime without powers of alienation and that on her death it should revert to the family. The remaining one acre and six cents in Survey No.585/B. was settled by Gopalu on one of his sons Venkayya who is the second defendant in the suit. On 12th July, 1917, Seshammal leased the property which was settled on her under Exhibit P-8 to one Adappa for a period of nine years, as per Exhibit P-2. On the termination of this lease the second defendant became a lessee under Seshammal of the property comprised in Exhibit P-8 and was in possession as her tenant. Seshammal died on 13th September, 1928 and the property then devolved as per the terms of Exhibit P-8 on the plaintiff, this second defendant and their two brothers as co-owners. Venkayya who got into possession of the property as a lessee under Seshammal continued in possession without break even after her death on 13th September, 1928. In 1935 this property was transferred to the patta of the second defendant (vide Exhibit D-2). On 4th June, 1945, Venkayya executed a deed of settlement transferring this property along with ‘others to his daughter, the 1st defendant. On 14th May, 1946, the first defendant leased them to the seventh defendant under Exhibit D-4. On 25th July, 1946, the plaintiff instituted the present suit for partition and delivery to him of his one-fourth share in the property; that is item 1 in the schedule of properties to the plaint.

Items 2 and 3 in the plaint are vacant sites which belonged to Gopalu. Under a will Exhibit P-4, dated 7th November, 1925, he bequeathed them to the plaintiff and to his two daughters who are defendants 5 and 6 in the suit. These properties were also included in Exhibit D-3 the settlement deed executed by the second defendant in favour of the first defendant. The plaintiff prayed that an injunction might be issued restraining defendants 1, 2 and 7 from interfering with the possession by the plaintiff and defendants 5 and 6 of items 2 and 3. Both the courts below have refused this prayer because they found that neither the plaintiff nor defendants. 5 and 6 were in possession of the properties on the date of the suit. The appellant disputes the correctness of this finding on the ground that in O.S.No.77 of 1938, on the file of the Sub-Court, Nellore, which was a suit for partition among the parties a final decree was passed on 21st September, 1939, Exhibit P-5 effecting a division of these properties. If the matters stood there, I should have had considerable difficulty in agreeing with the courts below, in view of the fact that the plaintiff and defendants 5 and 6 have a clear title to the properties under Exhibit P-4 and as they are vacant sites, possession must be presumed to follow title unless effective acts of possession are established by defendants 1, 2 and 7. But the decision of the courts below can be supported on another and simpler ground. Under Exhibit P-5 items 2 and 3 are not allotted to the plaintiff. That is conceded by Mr.K. Umamaheswaram on behalf of the appellant. That being so, there being no title in him, he is not entitled to any relief with reference to them. It is for defendants 5 and 6 to vindicate their rights in appropriate proceedings. On this ground the dismissal of the suit as regards items 2 and 3 must be sustained.

The questions that are raised with reference to item 1 are of a more substantial character. The contesting defendants pleaded that even if the plaintiff became entitled to a fourth share of item 1 on the death of Sesha