JUDGMENT
1. The District Judge states as his opinion that when the decree in Original Suit No. 503 of 1892 was not executed, defendant 1 continued occupation of the land “would rank as that of an annual (sic) tenant.” He has not given his reasons for his opinion. In Vadapalli Narasimham v. Dronamraju Seetharamamurthy(1), quoted by the learned District Judge, it was held that the representatives of a tenant on sufferance who enter after his death on the land are trespassers, but if the tenancy on sufferance is by the landlord's assent converted into a tenancy from year to year, the representatives of such a tenant are tenants from year to year: see Subraveti Ramiah v. Gundala Ramanni(2). The District Munsif was right in his opinion that under Sections 5 of the Malabar Compensation for Tenants' Improvements Act, a tenant to whom compensation for improvements is due is entitled to remain in possession until the value of his improvements is paid, and it was held in Kummatha Vittil Kunhi v. Antoni Goveas(3) that the possession of a tenant holding over until he is paid the value of his improvements does not begin to he adverse to the landlord's title till payment is made.
2. But the District Munsif was wrong in applying those principles to the present case without first finding as a fact that money was due to defendant 1 on account of improvements and that it was not at any time paid. Whether the defendants or their father after the litigation of 1892 should properly be treated as tenants from year to year, tenants on sufferance, or trespassers depends on what was the effect on their rights of the decree in Original Suit No. 503 and on what passed between the parties subsequently. The District Judge had not referred to the evidence on this point. We must call for a frash finding, to be returned by the District Judge within six week on the evidence on record, on the issue whether the possession by Pakru or the defendants of the suit property was at any time previous to this suit possession adverse to the plaintiff and, if so, from when it began to be adverse and till when it continued to be adverse, Ten days are allowed for filing objections.
FINDING
3. This suit has been remanded by the High Court for a finding on the issue whether the possession by Pakru or the defendants of the suit property was at any time previous to this suit adverse to the plaintiff and if, so, from when it began to be adverse. 2. Defendant 1's father Pakru admittedly held the plaint property on lease under plaintiff's predecessor, the karnavan of a Nayar tarwad. This lease was determined by Original Suit No. 503 of 1892, when plaintiff's father sued Pakru for recovery of the suit land. He obtained a decree but he did not execute it. Pakru remained on the land and was succeeded by defendant 1. Then in Original Suit No. 301 of 1914, the suit under appeal the plaintiff sued for recovery on an unregistered kaichit, Ex. A. The lower Court and this Court have found Ex. A not to be genuine. Beyond Ex. A there is no satisfactory evidence that Pakru remained on the land under any agreement with the jenmi. It is argued now that there must have been an oral lease, otherwise the decree in Original Suit No. 503 of 1892 would have been executed. Of course it is quite possible that Pakru saved himself from ejectment by making an oral agreement; but it is not proved. Other explanations could be imagined to account for his not being ejected, and the plaintiff's original case was not this oral agreement but the definite kaichit, Ex. A. If the plaint document is found to be a forgery, the plaintiff is on insecure ground in urging that underlying the forgery was a genuine oral agreement which the Courts should uphold. 3. In the oral evidence it will be seen that P.W 1 stands by Ex. A. His examination-in-chief is on that alone. P.W 2 is a casual witness who can hardly be believed. He went to catch fish and heard the plaintiff's uncle discuss a demise with Pakru. P.W 3 speaks to Ex. A.P.W 4 saw rent paid five or six years ago. The amin who is said to have been present, at the oral agreement would have been a valuable witness; but he is not called. 4. I find that there is no evidence that the relation of landlord and tenant subsisted between Pakru and the tarwad which owned the jenm after the institution of Original Suit No. 503 of 1892. At most Pakru could be said to be holding yearly on sufferance. But in the light of the ruling to which my attention has been directed, Subraveti Ramiah v. Gundala Ramanni:
“it seems doubtful whether the fiction of a tenancy by sufferance should be kept up.”
4. If so, Pakru's adverse possession would begin to run from the date of Original Suit No. 503 of 1892. It was lastly argued that the possession could not be adverse since it was without notice or knowledge to the landlord. But a landlord presumably knows who occupies his land, and if the occupier makes no agreement and pays no rent, the possession must be held to be adverse. If Pakru's possession was adverse then defendant 1's is eqully adverse. There is no need to add the two terms together as was done in the case of Subravati Ramiah v. Gundala Ramanni referred to above: for P.W 4 admits that defendant 1 himself has been in possession for 15 years. When I first heard this appeal, I thought that Pakru as a tenant holding on even after his term had expired, might be treated by the lessor as tenant from year to year; but his representatives who entered after his death could not be said to have ever been tenants, an opinion which was based on the case quoted as Vadapalli Narasimham v. Dronamraju Seetharamamurthy.
5. I do not know why the District Munsif referred to the Malabar Compensation for Tenants' Improvements Act. The suit land is a paddy field and there was no question of improvement.
6. I find that the possession by Pakru and the defendants of the suit property was adverse to plaintiff and it began to be adverse from the date of Original Suit No. 503 of 1892, which was sought to be executed according to P.W 2 in Malayalam year 1868 or 1893.
7. (This second appeal coming on for final hearing after the return of the finding of the lower appellate Court upon the issues referred by this Court for trial, the Court delivered the following.)
Sadasiva Aiyar, J.:— The plaintiff is the appellant in this second appeal. He brought the suit in ejectment on the basis of an unregistered kaichit, dated October 1894, alleged to have been executed by the deceased Pakru whose representatives are defendants 1 to 6. Both the lower Courts found that this unregistered kaichit was not a genuine document. The plaintiff based his claim also upon his title. When he so based his claim on title, he ought to have stated in his plaint when he was dispossessed by the defendants, so that the Court might be satisfied that the suit on title is not barred by limitation, that is, that he had not been dispossessed more than 12 years before suit. He did not give any indications in his plaint on these points, evidently because the plaint was substantially based on the alleged kaichit, of 1894. When the case came up on second appeal before this Court, it remanded the suit for a finding by the lower appellate Court on the issue whether the possession by Pakru or the defendants of the suit property was at any time previous to this suit adverse to the plaintiff and if so, from when it began to be adverse and till when it continued to be adverse.
8. It is common to both sides that Pakru was originally a tenant under the plaintiff's tarwad. The plaintiff's tarwad put an end to the tenancy and then brought a suit, Original Suit 563 of 1892, to eject Pakru. That suit resulted in a decree in ejectment. But that decree was not executed and was allowed to be barred. It seems to me clear that when a plaintiff has obtained a decree for possession of immovable property and allows execution to become barred, he cannot bring a fresh suit for ejectment against the same parties or their representatives, unless any events have happened between the date of the decree and the date of the second suit which fresh events have given rise to a fresh cause of action in ejectment. The finding of the lower appellate Court is that no such events have happened. On that finding it seems to me that this suit is clearly barred as res judicata.
9. We are next asked to admit fresh evidence in second appeal in order that the finding of appellate Court might be attacked on such fresh evidence. In 1872 the Bombay High Court decided in Nanabhai Vallabhdas v. Nathabhai Haribhai(4) that it was not competent to the High Court to admit fresh evidence as to facts in second appeal and that decision was followed in Ramchandra Pandurang Sathe v. Krishnaji Vithal Joshi(5), and the same practice has prevailed in this Court. The proper course, where a party thinks that any fresh evidence which is discovered after the decision of the appellate Court would have been of assistance to him if it had been considered at the original trial or in the appeal, is for him to withdraw the second appeal and apply for review of the judgment in the lower appellate Court. We must, therefore, dismiss the petition presented to us for allowing fresh evidence to be admitted in second appeal.
10. The above observations are sufficient to dispose of the second appeal; but as the appellant's learned vakil placed before us very strenuously some arguments on the question of the continuance of the relationship of landlords and tenants after the decree in the suit of 1892 and on the question of adverse possession, I shall make a few observations thereon. The former decree of 1892 in ejectment was clearly based on the ground that the relationship of landlord and tenant had been put an end to between the parties before the suit was brought. I think it is absolutely unarguable that a tenancy can be put an end to by the landlord's act, but the decree of the Court, which recognises the said act of the landlord as having put an end to the tenancy, again revives the relationship of landlord and tenant and that such relationship continues till the landlord does a fresh act putting an end to the tenancy. Then on the question of adverse possession, I have, no doubt, held in Ganapathi Mudali v. Venkatalaksliminarasayya(6) that mere expiry of the terms of an agricultural tenancy should not be held to make the tenant holding over a trespasser and that the ordinary presumption ought to be that be holds ever as a tenant from year to year. But such a presumption is out of place when the facts are, not that the landlord has passively allowed the tenant to hold over and the tenant has quietly continued to hold over, but that there has been an express putting an end to the tenancy by the landlord and a decree of Court recognizing the termination of the tenancy and decreeing ejectment to the landlord. In such a case, there can be no question of the tenant continuing to occupy the land (after the date of the decree) as a tenant from year to year. His possession is wrongful and opposed to his duty to obey the decree of Court by surrendering possession to the decree-holder. Hence, unless there are subsequent express and overt acts on the part of the landlord and tenant afterwards creating the relationship of landlord and tenant afresh, the judgment-debtor's possession is wrongful. I might add that in this case the evidence is to the effect that the contesting defendants refused to execute a fresh kaichit after the original decree in ejectment became barred. Under these circumstances, I have no hesitation in accepting the finding of the lower appellate Court that the judgment-debtor in the former suit and his representatives have been in possession adversely to the plaintiff. The second appeal is accordingly dismissed with costs.
Spencer, J.:— I agree. If at the time when this appeal was remanded for a finding on the issue of adverse possession a good case had been made out for allowing the parties to adduce fresh evidence, I think that this Court would have been competent as a Court of Second Appeal to direct the lower appellate Court to record additional evidence. But at this stage, when this case has once gone back and a fresh finding on the issue of fact has been recorded, I do not think it would be proper to give the appellant the indulgence he now asks for.
S.N/R.K
11. Appeal dismissed.