1. This is an appeal by some of the defendants in a suit brought by respondent No. 1 for possession of certain immoveable properties.
2. The properties consisted of a house site survey No. 126B and a bungalow built thereon at Vijayadurg and a number of fields in the villages of Vijaya-durg and Giraye in the Devgad taluka of the Ratnagiri district. The basis of the respondent-plaintiff's claim is that the properties belonged to Vishnu defendant No. 1 who sold them to Himatlal Manji & Co., a firm of Marwaris doing business in Bombay, on July 29, 1926. The plaintiff purchased from the Marwaris on January 19, 1937. The defendants, except Nos. 13 to 19 who are tenants, are all relations of defendant No. 1. Defendant No. 3 is his brother and the others are the sons of his two other brothers Bhaskar and Vithal. They all claim to have become owners by adverse possession. Defendant No. 6 who is the principal defendant claims to be the owner of survey No. 126B and the bungalow under the circumstances shortly to be explained. He also contends that one of the properties, viz. a godown attached to the bungalow, has not been sold to Himatlal Manji & Co. nor to the plaintiff. The trial Court decreed the suit in respect of all the properties and reliefs claimed.
3. A very large part of the record of the case is taken up with survey No. 126B which has had a curious history. The site was Government waste land and it was put up for auction on May 22, 1916, and purchased by one Jaokar.
4. Exhibit 185 is the conditions of sale. One condition, No. 9, was that the purchaser had to obtain the written permission of the Mamlatdar or Mahalkari before cultivating the land (lagvad karne). There is a reference to Section 60 of the Bombay Land Revenue Code which requires that permission has to be obtained before entering upon occupation of an unoccupied land. So that this condition may mean that if the purchaser desired to cultivate or occupy the land in any other way he had to obtain permission. It is further provided in condition No. 9 that in order to obtain this permission it was necessary to execute a kabulayat in the prescribed form. Condition No. 13 was that the purchaser would have no right of leasing, mortgaging or selling the land. There was nothing in the conditions of sale about building on the land, but the Assistant Collector, who was asked to report whether there was any objection to the sale to Jaokar, mentioned that the land was required for building a house. The Collector ordered that as the land was wanted for building rent must be fixed. The Assistant Collector suggested a rent of four annas per guntha, and on January 7, 1917, the Collector sanctioned this proposal and ordered that further steps should be taken to give effect to the sale. The Mamlatdar informed Jaokar the purchaser and recovered the balance of the purchase price from him. On October 4, 1917, the Collector ordered the Mamlatdar to give possession to him and possession was given on November 29, 1917.
5. Exhibit 242, which is undated but appears to be of the year 1922, is a declaration by the purchaser Jaokar that he had purchased on behalf of Vishnu defendant No. 1. He mentioned that Vishnu had built a bungalow on the land. The Revenue Authorities accepted the position that defendant No. 1 was the real owner and on January 6, 1923, defendant No. 1's name was entered in the revenue records in place of Jaokar. Prior to this on October 18, 1922, defendant No. 1 had obtained a formal conveyance from Jaokar.
6. About this time the pot hissa survey was being made and it was discovered that the area of survey No. 126B was not two gunthas, as it had been supposed to be, but four gunthas. The records were corrected and the Collector ordered that rent should be recovered from defendant No. 1 for four gunthas at the rate already fixed. This was in 1923, the Collector's last order being December 11, 1923, and nothing happened for four years as far as the record of this case shows.
7. In December, 1927, the Mamlatdar reported that no kabulayat had been taken from the purchaser and suggested that it ought to be taken from defendant No. 1. The Assistant Collector ordered that that should be done if Jaokar consented. Then on March 27, 1928, the Mamlatdar reported (exhibit 245) that two notices had been sent to Vishnu who had first asked for time but afterwards avoided service. He suggested, however, that as a bungalow had been built on the land the kabulayat might be dispensed with. The Collector, however, took a different view. He was of opinion that a kabulyat was necessary under the conditions of sale, and as defendant No. 1 had refused to execute one, he ordered on May 14, 1929, that the order for the grant of the land dated January 6, 1917, should be cancelled and that it should be put up to auction again. I have already mentioned an order made by the Collector on January 7, 1917, but no order dated January 6, 1917, is on the record. Accordingly the site was put up for sale again. The proclamation, which is exhibit 248, states that the conditions of sale were to be ascertained from the Mamlatdar's katchery and it appears that the conditions were the same as before, including the one about taking a kabulayat and the prohibition against alienation. Nothing was said about the building on the land.
8. The sale took place on October 14, 1929, and defendant No. 6 was the highest bidder. On January 23, 1930, the Collector sanctioned the sale to him and ordered that possession should be given. In this order, exhibit 250, the Collector said 'We cannot take any action regarding the building on the land.' Defendant No. 6 actually got possession from Government on May 2, 1936. Shortly after that, on May 21, 1930, we have a report of the Mamlatdar, exhibit 247, pointing out that the order for sale in 1916 had said nothing about restricted tenure and suggesting that condition No. 13 containing the prohibition against alienation was not struck out from the printed list of conditions owing to the mistake of a clerk. The Mamlatdar said that Vishnu defendant No. 1 had objected to execute a kabulayat on the restricted tenure. He said that the condition had not been scored out on: the occasion of the second sale also and the new purchaser had accepted the condition, but he wanted to know why the condition was imposed. This report was forwarded by the Assistant Collector who stated that as the new purchaser had purchased under the restricted tenure nothing need be done. The Collector, however, ordered on June 10, 1930, that as no order about restricted tenure had been made, it was a mistake to insert the condition, and therefore a new kabulayat should be obtained. That was done, so that defendant No. 6 now holds the site as transferable property.
9. The plaintiff's case, which the trial Court has accepted, is that the Collector had no power to cancel the grant to Jaokar and defendant No. 1, that the subsequent grant to defendant No. 6 may be ignored and that title duly passed from defendant No. 1 to Himatlal Manji & Co. and so to the plaintiff. The learned Judge's reasoning is this. According to him building sites cannot be granted on restricted tenure. Everyone knew that Jaokar wanted the land for building, so that it was understood that the grant was to be unrestricted. The clause in the conditions of auction was left in by the mistake of a clerk. There was no justification therefore for calling on defendant No. 1 to execute a kabulyat containing this condition, and moreover it was contrary to natural justice to set aside the grant without notice to the real owner, Himatlal Manji & Co.
10. This is not altogether a correct statement of the position. The learned Judge is wrong in saying that building sites cannot be granted on restricted tenure. Rule 43 of the Land Revenue Rules of 1921 provides that the land may be granted on an inalienable tenure, though it also says that 'save in special cases in which the Collector with the sanction of Government otherwise directs, or in certain localities, building sites shall be granted in perpetuity and shall be transferable,' The rule also provides for the taking of a kabulayat from the grantee in one of two specified forms. It is clear from these forms F and H in the appendix to the rules that one of the objects of taking a kabulayat is to get an undertaking for payment of the land revenue. As no special order seems to have been passed under Rule 43, the Collector ultimately took the view that the condition prohibiting alienation should not have been inserted. But there is no reason to suppose that there was any definite understanding about this matter when the sale took place. Condition No. 13 may simply have been overlooked. The statement in the Mamlatdar's report of May 21, 1930, that Vishnu's main objection to the passing of a kabulayat was this condition about restricted tenure is a little difficult to reconcile with his earlier report exhibit 245 dated March 27, 1928, in which he said that Vishnu was evading service of the notice. But supposing that this was Vishnu's reason for declining to execute a kabulayat, it can hardly be said to be sufficient. As Dewan Bahadur Shinge who appears for the appellants says, the proper course for him was to move the authorities to delete the condition, which would probably have been done in his case as it was in the case of defendant No. 6. As for the fact that no notice was given to Himatlal Manji & Co., there is no evidence that the revenue authorities were aware of the transfer to him. It was not reported to the village officers for entry in the Record of Rights until January, 1931.
11. We have been referred to various sections of the Bombay Land Revenue Code, viz. Sections 62, 68 and 79A in support of the appellants' contention that the cancellation of the grant was within the Collector's powers. Mr. Rele for the plaintiff on the other hand relies on Section 172 which says that after confirmation a sale becomes absolute as against all persons whomsoever. We think, however, that as Government has not been made a party it would be futile to consider the question. We cannot be sure that all the relevant facts are before us, nor even that the legal position has been correctly stated. No decree which could be passed in this suit could be binding on the revenue authorities who would be entitled to treat defendant No. 6 as the owner of the site until the orders cancelling the grant to defendant No. 1 and re-granting the site to defendant No. 6 are set aside in a properly constituted suit.
12. Mr. Rele referred us to Amolak Banechand v. Dhondi I.L.R. (1906) 30 Bom. 466 where Government was added as a party even in a second appeal at the instance of the Court. But we can see no good reason why that course should be adopted in this case, and moreover there is the difficulty about limitation. The relief sought is obviously inconsistent with the orders of the Collector, and a suit ought to have been brought to set them aside within a year under Article 14 of the Indian Limitation Act. We think that plaintiff's claim to survey No. 126B is unsustainable.
13. So far we have only dealt with the site. The bungalow was admittedly built by defendant No. 1. The maxim omne quod inaedificatur solo, solo cedit does not apply in India, as was pointed out by the Privy Council in Vallabhdas Naranji v. Development Officer, Bandra (1929) L.R. 56 IndAp 259. Vishnu, when he lost his right to the land, was entitled as against Government to remove the building or else to be allowed compensation for the value of the building at the option of Government. His successor in title must, we think, have the same right against defendant No. 6. That of course is subject to the finding on the question of adverse possession which has now to be considered.
14. It is common ground that the suit properties belonged to defendant No. 1 and that his brothers had no interest in them. The sale deeds by which he purchased them are on record. Exhibit 201 is a notice which he sent to his three brothers in the year 1922 announcing his separation from the family, giving up his right to any share in the family property, and agreeing to pay some of the debts of his brother Bhaskar, but disclaiming liability for any future debts. Exhibit 97 dated October 30, 1922, is a declaration made by defendant No. 1's three brothers before a Notary Public in which they renounced all interest in the properties of defendant No. 1, i.e. the properties now in suit. They admitted that they were his self-acquired properties and that he was the sole owner. Defendant No. 6 has stated in his evidence that Shankar defendant No. 3 separated in 1923, but Bhaskar and Vithal and their sons remained joint. In 1929 Shankar brought a suit against Bhaskar, Vithal, Vishnu and Himatlal Manji & Co. The Marwari firm was impleaded as the mortgagee of some property at Bassein. The suit was for possession of a third share in the family properties. The plaintiff Shankar alleged that Vishnu, then defendant No. 3, had relinquished his share in these. Vishnu did. not put in an appearance and apparently Shankar was not able to prove the relinquishment. So that on the evidence it was held that he was entitled not to one-third but to one-fourth. But the point to be noticed is that the properties now in suit were not included in Shankar's suit, and, as I say, it. is common ground that these were the property of defendant No. 1.
15. In attempting to set up adverse possession the appellants are faced with the obvious difficulty that the suit is brought within twelve years of the sale by defendant No. 1 to Himatlal Manji & Co. The sale was in July, 1926, The suit was brought in April, 1938. It has not been very seriously disputed on behalf of the plaintiff that there has been adverse possession since the Marwaris became the owners. Their interests appear to be confined to Bombay and they have done little or nothing in connection with this property. But in order to make out adverse possession for the statutory period the appellants have got to show that the possession of the contesting defendants became adverse while defendant No. 1 continued to be the owner and before he sold to the Marwaris.
16. Defendant No. 1 appears to have spent most of his time in Bombay. He is described by defendant No. 6 as being a very 'fashionable' person, by which he seems to mean sophisticated, or the opposite of countrified. He apparently had no use for the estate in Vijayadurg except as a place where he could get some shooting. It is in evidence that he made occasional visits to his family home. One of the witnesses says that he sometimes stayed in the bungalow in suit. All the other witnesses say that he stayed in the family house. He had mortgaged all these properties to the Marwaris in 1922 and 1923 and, as already stated, he sold them to pay off the mortgage debt in July, 1926. After that naturally he took no interest in the estate. For some reason which has not been adequately explained, the Marwari purchasers Himatlal Manji & Co. never took possession and indeed never made any attempt to get possession. In 1927, when one Kadam got the suit properties attached in execution of a decree against defendant No. 1, they asserted their ownership and got the attachment set aside. In December, 1930, and January, 1931, they got their names entered in the Record of Rights as purchasers. Apart from that they did nothing at all and it seems that they never received an anna of income from the estate. Under the circumstances it was very easy for the defendants to get into possession and it is not seriously disputed that for several years at any rate after the date of the Marwaris' purchase their possession has been adverse to the owners. But that would not be sufficient to make up the statutory period. On the face of it it seems to be somewhat unlikely that defendant No. 1's relations would conceive the idea of setting up a title hostile to him from the very beginning. It is quite clear that he had not abandoned this estate which was his separate property as he had abandoned his share in the family properties. The probabilities seem to be somewhat against the theory that their possession was adverse prior to 1926, and it is necessary to scrutinise the evidence with some care in order to ascertain whether it really does carry the adverse possession sufficiently far back.
17. The evidence which the appellants have produced is both documentary and oral. But the documentary evidence on examination turns out to have very little value. There are receipts for the payment of assessment first by Bhaskar and then by one or the other contesting defendants from 1923 to 1938. So far as we have been able to make out, these relate to all the suit properties, but the payment was made in the name of the owner, i.e. firstly defendant No. 1 and afterwards Himatlal Manji & Co. after the transfer to them was notified. Payment of assessment, therefore, proves little or nothing.
18. There are also five rent notes taken from various tenants by Bhaskar in the years 1924 and 1925. They are exhibits 217, 224, 225, 231 and 222. In all of these the fields are described as belonging to Bhaskar. But it is curious and somewhat suspicious that there are no rent notes except for these two years, all, except one, of 1924. It is still more suspicious that the rent notes were not shown to the village officers and none of the tenants were entered in the tenancy register. Moreover, Mr. Rele for the plaintiff has pointed out other difficulties in connection with these documents. Two of them exhibits 222 and 225 are in respect of survey Nos. 101 and 102. These survey numbers are mentioned in the plaint, but there is a note in one of the extracts from the Record of Rights, exhibit 118, that the name of the purchaser Himatlal Manji & Co. could not be shown against these survey numbers because they had never stood in the name of defendant No. 1. There seems therefore to be some doubt as to whether these really formed part of the estate of defendant No. 1 which is what the defendants claim to have adversely possessed. Another rent note, exhibit 224, is for two portions of survey No. 1 which do not appear to be included in the suit lands at all. Similarly exhibit 217 is in respect of portions of four survey numbers, but only two of these plots are mentioned in the plaint.
19. Mingel defendant No. 14 is one of the witnesses who has been examined and he claims to have been in possession of two plots, being parts of survey No. 36 and survey No. 55, for fourteen or fifteen years as a tenant of the Parulekars, i.e. the defendants. His name appears in the tenancy register but only in the year 1931-32. The appellants have failed to produce the tenancy registers for the commencement of the material period, but there is one on record which shows that prior, to 1931-32 most of the suit lands were shown as being cultivated by the owner. The tenancy registers therefore, even taking those that the appellants have, thought fit to produce, are not really consistent with their case that they have been cultivating these lands through tenants for fourteen or fifteen years.
20. Another witness Balkrishna claims to have been in possession of parts of survey Nos. 58 and 70 for fifteen or sixteen years. But he also is not shown in the tenancy register prior to 1931-32. He has spoken about the rent under exhibit 217. He says it was executed by his aunt, but, as I have pointed out, it refers to two plots which are not part of the suit properties. Witness Yeshwant is now in occupation of plots of survey Nos. 18 and 22. He says he has been the defendants' tenant for four or five years. His evidence therefore is of little value so far as he himself is concerned. He says that one Babaji Amberkar was cultivating the lands before him for nine or ten years. But this Babaji has not been examined. Though his name appears in the tenancy register in recent years, there is nothing to show that it was there when defendant No. 1 was the owner.
21. The evidence of these tenants only relates to a comparatively few of the survey numbers in suit. No doubt defendant No. 6 in his deposition has made a general statement that all the properties of Vishnu were in the possession of the contesting defendants and were either cultivated personally or through tenants. But it would be unsafe to rely upon a general statement of this kind without something definite to support it. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. The classical rule is that the possession should be nec vi nec clam nec precario. This well settled principle has been re-affirmed in two recent cases by the Privy Council, Secretary of State for India v. Debendra Lal Khan and Srischandra Nandy v. Baijnath Jugal Kishore (1934) L.R. 62 IndAp 40 where it is also pointed out that it is not necessary that the adverse possession should be shown to have been brought to the knowledge of the owner. It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. In the present case we are not satisfied on our scrutiny of the evidence that the defendants' possession was adequate in continuity, in publicity and extent to show that it was possession adverse to defendant No. 1 such as to put him upon inquiry. The evidence is not sufficiently definite and convincing to justify us in taking the view that prior to 1926 the defendants had set up a title of their own in respect of all or indeed any of the fields in suit.
22. As regards the bungalow, defendant No. 6 has deposed that Bhaskar and Vithal started a shop in the name of Parulekar Brothers in 1923 and that they and their sons have been in possession ever since. A witness Dattatraya, who has a shop next door, says that Parulekar's shop has been there for fifteen or sixteen years. Ganpat who is a servant in the shop and writes the accounts puts the period at ten or fifteen years. He himself has only been there for six years. A more important witness is Pandurang who is the mistri or contractor who built the bungalow and the godown which was erected about 1929. In the Judge's record of his evidence there is nothing about the shop but the vernacular deposition contains a statement that the shop has been there for fifteen years. A statement to the same effect is made by Gopal, a trader who deals with Parulekar Brothers. But, as the learned trial Judge says, these statements are very vague, and in the absence of anything more definite, preferably in writing, it would be very difficult to hold that adverse possession prior to 1926 has been established.
23. It. is unfortunate for defendant No. 6 that he has not been able to produce any account books of the shop prior to the year 1930-31. It is possible of course, that the old accounts have been lost or destroyed. But the fact remains that there is no documentary evidence, and the oral evidence is too indefinite to be convincing. In the case of the bungalow therefore, as in the case of the fields, we agree with the finding of the trial Court that adverse possession has not been established by satisfactory evidence.
24. On behalf of the appellants a point was urged in connection with the godown. According to defendant No. 6 this was built in 1929, Pandurang Mistri says he built it about ten years before he gave evidence, which was in November, 1939. Defendant No. 6 purchased the site at the auction on October 14, 1929. We should have no difficulty in holding, if it were necessary, that the godown was built after the transfer to him and that therefore Section 51 of the Transfer of Property Act would apply, and if defendant No. 6 were evicted he would be entitled to get the value of the improvement or other compensation as provided in that section. In the view we take of the case, however, no question under this section arises. We hold that on the materials before us defendant No. 6 is the owner of the site survey No. 126B. There is no question of his being evicted from the site or the godown erected on it.
25. The result of our findings is that the decree of the trial Court is to be modified as follows:--
Survey No. 126B is to be deleted from the properties in the decree. It should be declared that plaintiff is entitled to remove the materials of the bungalow, (not the godown), or to receive compensation at the option of defendant No. 6. The amount of compensation to be determined in execution. The words 'in three months' time' should be deleted from the order as to recovery of possession.
27. In other respects the decree is confirmed.
28. The appellants have partly succeeded and partly failed. But on the whole we think the fairest order to make about costs is that parties should pay their own costs throughout and the court-fees half and half.