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Madras High Court
Chokkalinga Naicken vs Muthusami Naicken And Ors. on 9 August, 1897
Equivalent citations: (1898) ILR 21 Mad 53
Bench: A J Collins, Benson


JUDGMENT

1. We are unable to agree with the District Judge that the principle in the Calcutta case quoted by him is applicable to the present case.

2. There the suit was for a large area of land paying rent. Here the suit is for a few square yards of vacant land used as vacant house-site or backyard in a town. The acts necessary to establish adverse possession in the two cases are very different. The use of the land by the defendant for the purposes of a backyard would not, under the circumstances, be sufficient to constitute adverse possession, especially when it is remembered that the parties are brothers, The case reported as Framji Cursetji v. Goculdas Madhowji I.L.R. 16 Bom. 338 is in point. Plaintiff having the title to the land must he held to have been in possession until first defendant began to build on it in 1894. Plaintiff then immediately protested and brought this suit in 1895. Plaintiff’s suit is not barred by limitation.

3. We must reverse the decree of the District Judge and restore that of the District Munsif with costs throughout in favour of plaintiff.


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