Coutts Trotter, J.

In this case the plaintiffs founded their title in their pleading upon an adoption of one Toolasi Naicken by Thathappa Naicken, Toolasi Naicken being the person from whom the plaintiffs derived their title through the first three defendants. The learned Judge, in fact, decided in favour of the plaintiffs not on the adoption, the existence of which he disbelieved, but on a supposed title by prescription acquired by Toolasi Naicken, for the benefit of the joint family, of which he was a member with surviv orship to his sons, the first three defendants. No issue is raised as to that, and indeed, we think it is very doubtful whether he really clearly found that, because he does not clearly say that Toolasi Naicken acquired it for any interest wider than his own. However, an issue will be framed Whether the joint family of which Toolasi Naicken was a member acquired title to the property in suit by prescription

Finding should be submitted in two months and seven days will be allowed for filing objections. Fresh evidence may be taken.

[In compliance with the order contained in the above judgment, the City Civil Judge, Madras, submitted a finding that the joint family of which Tholasinga Naicken was a member has been in continuous and exclusive possession of the house from the date (25 years ago) on which Kullammall (Daughter of Thathappa Naicker) was given in marriage to some one in Royapuram; and that they have acquired by prescription a title adverse to the said Kullammall for the property in suit.]

[This City Civil Court Appeal and Memorandum of Objections came on for final hearing before Coutts Trotter and Ramesam, JJ.]

JUDGMENT

The finding which we have called for in this case has been returned and the learned Judge finds that the joint family of which Tholasingam was a member acquired a title to the property in suit by prescription. That finding of fact is challenged on the ground that though the old lady (5th defendant Kullammal) had married and gone away to Royapuram and never again resided in the property in the ordinary sense, she is to be held to have kept alive her rights in it, against the accrual of prescription by the fact that occasionally she came and stayed a few days as a guest. That seems to be so, but that will not operate to make the possession of the family of defendants 1 to 3 less exclusive, so as not to extinguish the rights of the old lady in the property. This contention does not require discussion.

It is next argued that the suit is not maintainable, because at the time it was brought the plaintiffs were not in possession of the property and that no stranger, even after the completion of the prescription, can sue anybody for possession, because she had not got an iota of title at all, as he is merely a man who has prescribed against the title of the true owner and who is left with nothing, unless by mere brute force he can succeed in holding the property against anybody who tries to come up. To my mind this is an absolutely untenable argument and is based on what to my mind is a complete misunderstanding of the decision of the Court of Appeal in the case of Tichborne v. Weir (1892) 67 L.T., 735). There a tenant had a lease and somebody, a stranger, came and stood for thirty years in the shoes of the tenant and paid rent to the landlord. It was sought, at the end of a very long period, to enforce against the person in occupation of the premises by the landlord the performance of a covenant to repair, and the argument on which it was sought to base that contention was this: the statute in effect transferred the estate of the person prescribed against to the hands of the person in occupation. Their Lordships observed that it was an incorrect interpretation of the law and that what the statute did was not to transfer the title of the person prescribed against with all its burdens to the person in occupation but to extinguish the whole title and to create, not by transfer but by an act of creation, a new title in the person who completed the prescribed statutory term. That being so, that case has no application to the present circumstances and we must hold that the person who has completed the statutory prescription is entitled to eject any person with no title who seeks to retain possession of the premises.

The result is that the appeal fails and is dismissed with costs of the first respondent.