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Mir Akbaralli Mir Inayatalli Vs. Abdul Ajiz Mirsaheb Jahagirdar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 24 of 1919
Judge
Reported in(1920)22BOMLR916; 58Ind.Cas.96
AppellantMir Akbaralli Mir Inayatalli
RespondentAbdul Ajiz Mirsaheb Jahagirdar
DispositionAppeal dismissed
Excerpt:
.....still continuing undisturbed-possession after decree cannot hi tacked on to that before the decree-adverse possession to be effective must be for one continuous period after the decree.;the plaintiffs were in possession of certain property from 1882. in a suit brought against them in 1893, it was held in 1896 that they were not entitled to possession. notwithstanding this decree, the plaintiffs remained in possession till 1908, when they were dispossessed under an order passed by the collector. the plaintiffs having sued to recover possession on the ground of their adverse possession:-;dismissing the suit, that the plaintiffs could not be allowed to tack on the period of adrerse possession before the decree in the suit of 1893 to ' the period after the decree.;the period of..........august 1908.2. it is suggested in the first place that the plaintiffs can tack on the period of adverse possession before the decree in suit no. 96 of 1893 to the period after the decree, so that they acquired an absolute title after twelve years from the date of the original possession. that is an argument which we cannot accede w'. the period of adverse possession is calculated for the benefit of the party setting up adverse possession, and if he loses, then there is an end of that period, and he must, if he wishes to acquire a good title by adverse possession, start afresh after the decree. but we cannot presume since the decree was passed by the high court on the 7th july 1896 that the plaintiffs in this suit determined at once to hold adversely to the successful party, and in.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs brought this suit to establish their sole right to manage the devasthan of Usthal, alleging hereditary right and ancient and immemorial custom, against defendants 1 and 4, as representing a Board of Management elected, by various co-sharers under the Collector's order of 23rd March 1908. This question appears to have been decided against the plaintiffs by a decree of the High Court in Suit No. ' 96 of 1893 which was passed on the 7th July 1896. Apparently after the decree was passed the plaintiffs remained in possession, and nothing was actually done by the other side to get into possession until the Collector's order of the 1st August 1908.

2. It is suggested in the first place that the plaintiffs can tack on the period of adverse possession before the decree in Suit No. 96 of 1893 to the period after the decree, so that they acquired an absolute title after twelve years from the date of the original possession. That is an argument which we cannot accede w'. The period of adverse possession is calculated for the benefit of the party setting up adverse possession, and if he loses, then there is an end of that period, and he must, if he wishes to acquire a good title by adverse possession, start afresh after the decree. But we cannot presume since the decree was passed by the High Court on the 7th July 1896 that the plaintiffs in this suit determined at once to hold adversely to the successful party, and in effect in contempt of the decree of the High Court. It is quite possible after the decree had been passed, and after the successful party was so remiss in seeking to execute it, the plaintiffs might have gathered fresh courage, and might have, after a certain period had elapsed from the date of the decree, determined to set up again a title in themselves against the successful party in that suit. But we have no evidence of that, and certainly there is no evidence that they took that attitude before the 1st August 1908. But we think that it would require very strong evidence indeed on the part of a losing party to acquire a fresh title by adverse possession against the decree of the High Court or of any Court, and he would certainly have to act in such a way that the parties interested could have no doubt whatever with regard to his motives in order that they might be enabled to take proper steps to stop time from running. But in this case although the execution of the decree in Suit No. 96 of 1893 was barred by time, yet as laid down by the late Chief Justice in Bala v. Ahai (1909) 11 Bom. L.R. 1093 although the remedy may be barred the right remains. We, therefore, think that the decision of the learned District Judge was correct. The appeal fails and must be dismissed with costs.


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