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IN THE HIGH COURT OF MADRAS
Wallace
Rangaswami Naicker And Anr.
Versus
Venkitachala Naicker And Anr.
Decided On : 18 February, 1927
Adverse Possession - Delivery of Possession - Summary: The court affirmed that the delivery of possession to the plaintiff was not sham or symbolical, and the plaintiff came into possession on the specified date, ousting the previous occupants. The crucial issue was whether the defendants had proved possession within 12 years of the suit, which they failed to establish. The court emphasized that the plaintiff's claim of title was based on court auction purchase and delivery, not on an oral lease, and dismissed the appeal.
Fact of the Case:
The court declined to re-appreciate the evidence regarding the delivery under Ex. E, affirming the Subordinate Judge's finding that the plaintiff came into possession on a specific date, ousting the previous occupants. The remaining question was whether the defendants had proved possession within 12 years of the suit, which they failed to do.
Finding of the Court:
The court refused to re-open the finding on a question of fact and dismissed the appeal, emphasizing that the plaintiff's claim of title was based on court auction purchase and delivery, not on an oral lease.
Issues: The key issue was whether the defendants had proved possession within 12 years of the suit, and whether the plaintiff's claim of title was based on court auction purchase and delivery.
Ratio Decidendi: The crucial point was that the plaintiff's claim of title was founded on court auction purchase and delivery, and the defendants failed to establish adverse possession for 12 years prior to the suit.
Final Decision: The court saw no reason to interfere and dismissed the second appeal with costs.
Wallace, J.
1. I am not prepared to re-appreciate the evidence regarding the effect of the delivery under Ex. E. The Subordinate Judge has appreciated it from his point of view and I am not prepared to re-open his finding on a question of fact merely because the evidence of direct witnesses to what occurred some 15 years before they gave the evidence is of an uncertain nature. I must take it then that the delivery under Ex. E. to plaintiff on 17th September 1907 was not sham or symbolical but that he came into possession on that date and ousted those already there, whether these were defendant 1 or defendants 2 and 3. The only question then remaining, as the Subordinate Judge states, was whether defendants 2 and 3 had proved possession within 12 years of suit. As they were dispossessed on 17th September 1907, if they were in possession before that date, they could not establish adverse possession for 12 years prior to suit, since the suit was filed on 15th September 1919. It does not matter that the Subordinate Judge has not considered whether the oral lease pleaded by plaintiff in favour of defendants 2 and 3 in 1909 is true or not. Plaintiffs claim of title was founded on the Court auction purchase and delivery on 17th September 1907 and not on the oral lease and the suit was fought on that ground.
2. I see no reason to interfere, and dismiss this second appeal with costs.
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