1956 Supreme(Mad) 196

MADRAS HIGH COURT
RAJAMANNAR,PANCHAPAKESA AYYAR
Uthamaram Nathusam Sait
Versus
Hude Gopalakrishnayya
Second Appeal No. 2375 of 1952
Decided On : 26 April, 1956

In the case of cultivated land, momentary delivery of possession, even of real possession and not symbolic possession, not followed by subsequent possession and enjoyment, will not raise the presumption that it is continued for years together till the filing of the suit, in the absence of evidence on the part of the first defendant that he and his people continued on the land after the delivery of possession and continued the cultivation.

Headnote:

KUZHIKANAOM LAND - POSSESSION - DELIVERY OF POSSESSION - PRESUMPTION OF CONTINUATION OF POSSESSION - APPLICABILITY OF ILLUSTRATION (D) TO SECTION 114 OF THE INDIAN EVIDENCE ACT - ACTUAL CULTIVATION AND ACTS OF POSSESSION - JUNGLE LAND - TITLE FOLLOWS POSSESSION.

Fact of the Case:

The plaintiff, Nathuram Sait, filed a suit for a permanent injunction restraining the first defendant, Gopalakrishnayya, from entering the suit land, claiming to be the kuzhikanomdar, and restraining defendants 2 and 3 from joining the first defendant in any trespass on the said land. The plaintiff claimed to be in exclusive possession and enjoyment of the land since 11-4-1937, when it was delivered to him through Court by the amin. The suit land was attached in February 1928 in R. E. P. No. 289 of 1927 for attaching the suit lands and other lands, claiming them to be kuzhikanom lands of the Kooleri family. The plaintiff bought the lands himself on 9-12-1936. On 11-4-1937, the amin delivered the suit land and other lands to the plaintiff's agent, P. W. 1. The first defendant claimed to have obtained an oral lease from Shiba Ummabi under Ex. B-1, regarding the suit land on 25-12-1934. On 4-6-1935, a regular kuhzikanom maroupat, Ex. B-4, was executed by the first defendant's father to Shibu Ummabi in respect of the 10 acres. On 9-9-1940, the first defendant's father got, under Ex. B-8, the jenrnam right in respect of the suit land from a member of the Palat tarwad, and he claimed to have become the full owner of the suit land thereafter.

Finding of the Court:

The court found that the delivery of the suit land by P. W. 2 to P. W. 1 was physical delivery of the land, and not merely a paper delivery or symbolic delivery. The court also found that the plaintiff had not shown that except for the moment when the suit land was delivered over to his agent, P. W. 2, under Ex. A-7, he was in possession of any portion of the suit land. The court held that the plaintiff was not in possession after 11-4-1937. The court also found that the first defendant and his father continued to cultivate and enjoy the ten acres of pepper garden and that the plaintiff did not go to the pepper garden and enjoy it after the delivery, obviously because of the expected violent opposition of the first defendant and his father who had raised the pepper garden.

Issues: 1. Whether the delivery of the suit land by P. W. 2 to P. W. 1 was physical delivery of the land, or merely a paper delivery or symbolic delivery? 2. Whether the plaintiff had shown that except for the moment when the suit land was delivered over to his agent, P. W. 2, under Ex. A-7, he was in possession of any portion of the suit land? 3. Whether the plaintiff was in possession after 11-4-1937? 4. Whether the first defendant and his father continued to cultivate and enjoy the ten acres of pepper garden? 5. Whether the plaintiff went to the pepper garden and enjoyed it after the delivery?

Ratio Decidendi: 1. The court held that illustration (d) to S. 114 of the Indian Evidence Act would not apply to the ten acres of pepper garden which can never be called jungle land etc. It is obvious that a momentary delivery of possession, even of real possession and not symbolic possession, not followed by subsequent possession and enjoyment, will not raise, in the case of such cultivated land, the presumption that it is continued for years together till the filing of the suit, in the absence of evidence on the part of the first defendant that he and his people continued on the land after the delivery of possession and continued the cultivation. 2. The court held that the plaintiff had not shown that except for the moment when the suit land was delivered over to his agent, P. W. 2, under Ex. A-7, he was in possession of any portion of the suit land. The court also found that the first defendant and his father continued to cultivate and enjoy the ten acres of pepper garden and that the plaintiff did not go to the pepper garden and enjoy it after the delivery, obviously because of the expected violent opposition of the first defendant and his father who had raised the pepper garden.

Final Decision: The court modified the judgment and decree of the learned District Judge in appeal, by granting the plaintiff an injunction in respect of the 6 acres 40 cents of former jungle land against all the defendants, and giving him the right to get six acres 40 cents demarcated in execution (by separating the old pepper garden of ten acres and the six acres, 40 cents of former jungle land). The court also directed the plaintiff and the first defendant to give and take proportionate costs throughout, the plaintiff getting two-fifths of his costs, and the first defendant 3/5ths of his costs, in all three Courts.