PANGALURI VENKATACHELAPATI RAO Vs. PANGALURI JAYARAMAYYA

JUDGEMENT

(1.) It is argued with reference to isssue 5 that the findings of the lower Courts are based on 1st defendant s prescription against plaintiff and the other members of the family, and that no effective prescription was established. It is alleged in this connection that the lower Courts gave insufficient weight to the facts that the patta was throughout in the name of the father of the family and that 1st defendant was the senior and, therefore, presumably the managing member. Reference has also been made to Narayana v. Krishna 8 M. 214 and Parbati Dasi v. Baikuntha Nath Das 22 Ind. Cas. 51 : 15 M.L.T. 66 : 12 A.L.J. 79 : 19 C.L.J. 129 : 18 C.W.N. 428 : 16 Bom. L.R. 101 : 26. M.L.J. 248 (1914) M.W.N. 42 as showing that no presumption arises in favour of 1st defendant s ownership in the circumstances of this case. But those decisions are not in point, since they do not deal with acquisition, such as that now in question, which admittedly originated in trespass; and we have been shown no authority for the view that one member of a Hindu joint family must be presumed to have prescribed for the benefit of his co-parceners in such circumstances. In fact both Courts also dealt with this part of the case on this broader ground, the learned Subordinate Judge adopting the District Munsif s conclusions in toto, that the 1st defendant and his brothers including plaintiff had no title to the property and accordingly that there could be no question of prescription as between them. All were trespassers alike and the title, on which the 1st defendant is entitled to rely as against plaintiffs, is based only on his possession, which is admitted. This conclusion is sufficient to justify the determination of the issue in defendant s favour, and it has not been displaced. The appeal, therefore, fails in so far as it relates to the finding on issue 5.

(2.) Issue 4 was "whether the defendants Nos. 1 to 8 are in possession of items 17, 18, 19 and 20 of Schedule Aand of items 6, 11 and 13 of Schedule B."

(3.) The lower Appellate Court did not find on the question of possession of these items. It found only that they are the self-acquisition of the 1st defendant. We remand the case for a fresh finding on the evidence on record, on issue 4 as to the possession of the items referred to in it.