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Mariumbi Aslamkhan and anr. Vs. Vithoba Yeshwanta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 182 of 1961
Judge
Reported inAIR1970Bom405; (1970)72BOMLR142; 1970MhLJ355
ActsLimitation Act, 1963 - Schedule - Article 64; Evidence Act, 1872 - Sections 110; Specific Relief Act, 1963 - Sections 6; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 12; Prevention of Agricultural Land Alienation Act, 1349 - Sections 10
AppellantMariumbi Aslamkhan and anr.
RespondentVithoba Yeshwanta and ors.
Appellant AdvocateS.P. Kurdukar, Adv.
Respondent AdvocateS.G. Deshmukh and ;R.W. Adik, Advs.
Excerpt:
possessory title - principle of - person in peaceful possession dispossessed by trespasser--whether in suit by person in possession against trespasser necessary to prove ownership--distinction between principle of possessory title and rule of evidence in indian evidence act (i of 1872), section 110--distinction, between suit on possessory title and suit filed under specific relief act (xlvi1 of 1963), section 6.;a distinction must be made between the rule of evidence embodied in section 110 of the indian evidence act, 1872, and the principle on which the concept of possessory title is based. that principle is that possession constitutes by itself a limited title to the property, a title which is good against all except the rightful owner. this title, usually described as a possessory.....tarkunde, j.1. this is a plaintiff's appeal against a decree passed by the civil judge, senior division, bhir, dismissing a suit filed in forma pauperis for 'possession and mesne profits' of a numberof agricultural lands. the lands aresituate at village patharwala bujurg inthe bhir district they are about 196acres in extent and are assessed at aboutrs. 285/-.2. the lands originally belonged to the ancestors of some of the defendants, particularly defendants nos. 1, 2, 6, 7 and 8. they were, however, in the possession of one din mohammed khan and his brother fakir mohammed khan and the latter's sons aslamkhan and' mominkhah for a period of more than 20 years before 1948. the first plaintiff is the wife of the said aslamkhan, the son of fakir mohammed khan. the second plaintiff is a minor.....
Judgment:

Tarkunde, J.

1. This is a plaintiff's appeal against a decree passed by the Civil Judge, Senior Division, Bhir, dismissing a suit filed in forma pauperis for 'possession and mesne profits' of a numberof agricultural lands. The lands aresituate at village Patharwala Bujurg inthe Bhir district They are about 196acres in extent and are assessed at aboutRs. 285/-.

2. The lands originally belonged to the ancestors of some of the defendants, particularly defendants Nos. 1, 2, 6, 7 and 8. They were, however, in the possession of one Din Mohammed Khan and his brother Fakir Mohammed Khan and the latter's sons Aslamkhan and' Mominkhah for a period of more than 20 years before 1948. The first plaintiff is the wife of the said Aslamkhan, the son of Fakir Mohammed Khan. The second plaintiff is a minor daughter of the first plaintiff. Two or three months prior to the Police Action (which took place in September 1948); Fakir Mohammed Khan and his sons Aslamkhan and Mominkhan were murdered and their house was looted and burnt. Fakir Mohammed Khan's brother Din Mohammed Khan had been murdered sometime earlier. At the time of the murders of Fakir Mohammed Khan, Aslamkhan and Mominkhan, the first plaintiff escaped from the house with her minor daughter the second plaintiff and took refuge in the territory of the Indian Union. A couple of months after the Police Action, the first plaintiff went back to the village Patharwala . Bujurg with her father. When she found that the defendants had taken possession of the agricultural lands of the family and were cultivating them jointly. Through the good offices of the Afgan Embassy the first plaintiff applied to the Government of the Hyderabad State for the restoration of the lands, but after a good deal of correspondence, she was advised by the Hyderabad Government to approach the Civil Court for redress. Hence the present suit was filed in forma pauperis by the two plaintiffs on 6th September, 1956,

3. The plaintiff's stated in the plaint that the lands in suit belonged to Fakir Mohammed Khan and his sons Aslamkhan (the first plaintiff's husband) and Mominkhan. They described how Fakir Mohammed Khan, Aslamkhan and Mominkhan were murdered and their house set on fire and looted, how the -plaintiffs escaped and took refuge in the Union territory, and how the plaintiffs subsequently found that the defendants had usurped the lands and were cultivating them Jointly. The plaintiffs prayed for possession of the lands, for Rs. 35,000/-as mesne profits from 1949 to 1955 at the rate of Rs. 5,000/- per year, and for future mesne profits and costs,

4. No defence to the suit was filed by the first, the third and the fifth defendants. Defendants Nos. 2, 6, 7 and 8 filed separate written statements in whichthey claimed that they were in possessionof specified survey numbers out of theproperties in suit. They denied that theywere in joint possession of the suit lands.They alleged that the lands in their possession belonged to their respective ancestors, that they were mortgaged to theancestors of the plaintiffs, and that' themortgages were redeemed when the first -plaintiff came with her father to thevillage Patharwala Bujurg soon after thePolice Action. They claimed that; afterthe redemption, they were in possessionof their respective lands as full owners.Defendants Nos. 9 and 10 claimed in theirwritten statements that they were in possession of some of the lands in part performance of agreements of sale executedin their favour by the first defendant andby one Laxman Appa respectively. Theyalleged that the first defendant and the said Laxman Appa were owners of thelands which they (defendants Nos. 9 and10) had agreed to purchase. They alsodenied that they were in joint possessionof the suit lands.

5. At the trial five witnesses were examined on behalf of the plaintiffs includingthe first plaintiff. The evidence of thesewitnesses showed that Fakir MohammedKhan and his sons Aslamkhan and Mominkhan were in possession of the suitlands for a long time prior to 1948, thatFakir Mohammed Khan, Aslamkhan andMominkhan were murdered a few monthsbefore the Police Action, and that thereafter the defendants went into the possession of the suit lands. A number ofdocuments were also produced on behalfof the plaintiffs. The documents showedthat Fakir Mohammed Khan had been 'inpossession of the suit lands for more than20 years prior to 1948. Documents werealso filed to show that the defendants ortheir predecessors had applied to theTaluqdar in the year 1939-40 under Section 10 of the Prevention of AgriculturalLand Alienation Act (Act No. 3 of 1349Fasli) alleging that the lands had beenmortgaged with Fakir Mohammed Khanand claiming redemption of the mortgage,that the said applications were dismissedby the Taluqdar, and that appeals fromthe Taluqdar's decision were dismissed bythe Commissioner of the Aurangabad Division. Four witnesses were examinedon behalf of the defendants including defendants Nos. 6, 2 and 7. The defendantsalso produced extracts of Pahani Patraksin respect of the period subsequent to1949.

6. On this evidence the learned trial Judge held that the plaintiffs' predecessors (Fakir Mohammed Khan, Aslamkhan and Mominkhan) were in possession of the suit lands for a number of years prior to 1948. The learned Judge held that the defendants had failed to prove that the lands had been mortgaged with Fakir Mohammed Khan by the defendants', ancestors or that the mortgages had been redeemed with the consent ' of the first plaintiff as alleged by the defendants. At the same time the learned Judge held that the plaintiffs' title to the suit lands was also not proved, as the plaintiff's had failed to show how the lands were acquired by Fakir Mohammed Khan or his brother Din Mohammed Khan from the predecessors of the defendants who were the original owners of the lands. On these findings the learned Judge came to the conclusion that the plaintiffs' suit must fail, as the plaintiffs' alleged title to the suit lands has been disproved. In support of this conclusion the learned Judge relied on the following passage from Mr. Justice Broomfield's Judgment in Govindbhai Lallubhai Patel v. Dahyabhai Nathabhai Patel 38 Bom LR 175 : AIR 1936 Bom 201 :

'When a person who has lost possession sues to recover it, he cannot rest upon his prior possession alone, unless it was such as to amount to prima facie evidence of title. For both title and possession have to be proved in such a case...... Moreover, although the presumption that title goes with possession (Section 110 of the Indian Evidence Act) may, come to the assistance of a person who has had possession but has lost it,.... it must be open to the defendant who is in possession at the date of the suit to disprove the plaintiffs title. That seems clear from the language of Section 110. If the plaintiff's title is disproved .............. he cannot succeed on the basis of his possession only.'

Since the title to the suit lands originally vested in the defendants' ancestors and since it was not shown that the title had been transferred to the ancestors of the plaintiffs, the learned trial Judge came to the conclusion that the alleged title of the plaintiffs had been disproved, and that the plaintiffs were, therefore, not entitled to succeed in view of the statement of law in the passage quoted above. On the other issues the learned Judge found that the defendants were in joint possession of the suit property and that the annual net income ,of the property was about Rs. 2,500/- per year. In the result the learned Judge dismissed the plaintiffs' suit with costs,

7. We will presently point out that the remarks of Mr. Justice Broomfield in 38 Bom LR 175 : AIR 1936 Bom 201 quoted above were obiter dicta and that they are inconsistent with other precedents which are binding on this Court. Before dealing with those remarks, however we will first examine the main findings of fact of the learned trial Judge,

8. It was proved by abundant evidence and was not denied by Mr. Desh-mukh, who appears on behalf of the defendants before us, that Fakir Mohammed Khan had been in possession of the suit lands for at least 20 years before 1948. Extracts from Pahani Patraks for several years from 1929 to 1947 were produced by the plaintiffs as exhibits 133 to 147. These extracts show that while the de-fendants' predecessors were entered as the owners of the lands. Fakir Mohammed Khan was in possession thereof. In the Pahani Patrak of 1943 (1352 Fasli) It was mentioned that Fakir Mohammed Khan was the purchaser of these lands, but the source of his possession ,was not mentioned in most of the other Pahani . Patraks. The plaintiffs also produced as exhibits 99 to 119 several receipts which showed that Fakir Mohammed Khan paid the revenue of many of these lands for a number of years. These revenue receipts range between the years 1918 and 1938. The plaintiffs also produced an extract of 'K' Patrak of the year 1940 which corresponds to the Record of Rights. In this -extract Fakir Mohammed Khan was entered as the occupant of the lands and against the column 'nature of right' it was stated that he was an old occupant and that the nature of his right was not known. Apart from this documentary evidence, the oral evidence of the plaintiffs as well as the defendants showed that Fakir Mohammed Khan and his sons had been in possession of the suit lands several years prior to 1948.

9. Secondly, the defendants have clearly failed to prove that the lands had been mortgaged with Fakir Mohammed Khan or that the latter was in permissive possession thereof The documents at exhibits 121 to 152 are certified copies of proceedings before the Taluqdar and the Divisional Commissioner under the Prevention of Agricultural Land Alienation Act (Act No. 3) of 1349 Fasli. These documents show that in 1939-40 the defendants' predecessors had applied to the Taluqdar under Section 10 of the said Act for the redemption of these lands. Allegations were made in these applications that Fakir Mohammed Khan had passed documents in favour of the defendants' predecessors in which he acknowledged that the lands were held by him as a mortgagee. At the hearing of these applications no evidence was led by the defendants in support of these allegations and their applications were dismissed. Appeals filed by the defendants' predecessors from the dismissal of their applications were rejected by the Divisional Commissioner of Aurangabad in 1942-43.

10. At the hearing of the present suit also no document was produced by any of the defendants to show that the lands had been mortgaged with Fakir Mohammed Khan at any time. What is more,no reference to any of the alleged mortgages is found in the Pahani Patraks forthe years ranging from 1929 to 1947which were produced by the plaintiffs atexhibits 133 to 147. Oral evidence of thealleged mortgages was sought to be givenby defendants Nos. 6, 2 and 7 in thecourse of their testimony. The cross-examination of these defendants, however,showed that none of them was present atthe time of the alleged transactions ofmortgage. Defendant No. 6 claimed inhis evidence that his lands had been mortmortgaged by his father 'for Rs. 800/- toRs. 1000/-', and that there was an agreement to take back the lands after a periodof 20 years. It appears, however, froman application which defendant. No. 6had made to the Collector of Bhir in 1925(1334 Fasli) that his claim at that timewas that he had given the lands to FakirMohammed Khan on a lease for a periodof ten years. Defendant No. 2 was unable to state for what amount her landshad been mortgaged. Defendant No. 7was also unable to give any details aboutthe alleged mortgage. Under the circumstances, we agree with the learned trialJudge that there is no evidence whateverto show that the lands had been mortgaged with Fakir Mohammed Khan by thedefendants' ancestors as alleged by thedefendants. ,

11. Thirdly, there can be no doubt that the defendants trespassed on the lands in suit soon after the murder of Fakir Mohammed Khan and his sons Aslamkhan and Mominkhan in 1948. By way of denial of the alleged trespass the defendants took up the plea that the first plaintiff had visited the village Patharwala Bujurg a few months after the Police Action, that the mortgages were redeemed at that time by mutual agreement, and that the defendants entered into the possession of the lands as a result of this agreement with the first plaintiff. The learned trial Judge rightly held that there was no truth in these allegations. The only witnesses examined to prove the alleged redemption were defendants Nos. 6 and 7. They admitted in cross-examination that some persons capable of Writing documents were present at the time of the alleged agreement with the first plaintiff, but that no document was executed at that time. In their applications for redemption of the alleged mortgages under Section 10 of the Prevention o Agricultural Land Alienation Act some of the defendants had. claimed that, according to mortgage agreements, Fakir Mohammed Khan was to enjoy the income of the lands in lieu of interest on the amounts advanced by him and that the lands were to be redeemed on payment of the mortgage amounts. The 6th and the 7th defendants, however, stated in their cross-examination that no payment was made to the first plaintiff in their presence when she agreed to treat the alleged mortgages as having been redeemed. We find that the defendants had trespassed on the lands after the Police Action and that they did not enter into the possession as a result, of any agreement with the first plaintiff,

12. We have held above that Fakir Mohammed Khan was in possession of the suit lands for a period of at least 20 years prior to 1948. The evidence shows that his possession was open, exclusive and continuous and that it was not traceable to any permission given by the defendants' predecessors who were the original owners of the lands. Under the circumstances, it is possible to hold that Fakir Mohammed Khan had become the owner of the suit lands by adverse possession. It was deposed to by the first plaintiff and admitted in the evidence of the 7th defendant that the plaintiffs are the only heirs of Fakir Mohammed Khan and his sons Aslamkhan and Mominkhan. Thus the evidence in the case would lead to the conclusion that the plaintiffs' title to the suit lands as owners has been established by adverse possession. We, however, find that the plaintiffs are entitled to succeed in, this suit even on the finding, firstly, that' the plaintiffs' predecessors were in possession of the suit lands and, secondly, that the defendants have no better right to possession than the plaintiffs.

13. It is necessary to observe before-proceeding further that the defendants'right to possession of the lands cannot beestablished merely from the fact that,' atsome time in the past, their ancestorswere the owners of the lands. If in theyear 1948 instead of illegally occupyingthe lands, the defendants had filed a suitfor possession, they could not have succeeded without showing that they or theirpredecessors were in possession of thelands within 12 years before the suit. Theevidence shows that they were not inpossession for nearly 20 years prior to1948. They had, therefore, no subsistingtitle to the lands when they occupiedthem in or about 1948. They had alsonot acquired any title to the lands whenthe present suit was filed by the plaintiffs. .

14. As noticed earlier. In dismissing the plaintiffs' suit, the learned trial Judge relied on Mr. Justice Broomfield's observations in 38 Bom LR 175 = (AIR 1936 Bom 201) that when a person who has lost possession sues to recover it, he has to prove both title and possession, and that, although the presumption that title goes with possession may come to his as-_ sistance, he cannot succeed if his alleged title is disproved by the defendant who is in possession. Now, both Broomfield J, and Macklin J., who formed the Bench which decided that case, stated in their judgments that the plaintiff in the suit before them was not proved to have been in possession of the property in dispute and was not disposed by the defendant. It, follows that the observations of Mr. Justice Broomfield which we have quoted earlier and on which the learned trial Judge relied were obiter and did not constitute the ratio of the decision. Moreover, those observations were contrary to several earlier decisions of this Court, including Krisharav Yeshvant v. Vasudev Appaji ILR (1884) 8 Bom 371, Ali Bhaudin v. Pachubibi (1903) 5 Bom LR 264, and Bhagwansingh Daulatsingh v. Secretary of State : (1908)10BOMLR571 . It was held in these cases that the plaintiff, who Is in peaceful possession of land without any other title thereto and who is dispossessed by the defendant, is entitled to recover possession if the defendant is not able to show a better title. In (1903) 5 Bom LR 264 mentioned above, Mr. Justice Chandavarkar said in his judgment that 'a person in possession has a good title as against every stranger, and one who dispossesses him, having no title in himself is a wrong-doer and cannot defend himself by showing that title is in some third person'. Apart from these earlier cases of this Court, the above observations of Mr. Justice Broomfield must now be held to be bad law in view of the decision of the Supreme Court in Nair Service Society Ltd. v. Alexander, : [1968]3SCR163 .

15. Before referring to this decision of the Supreme Court, it is desirable to consider the matter on principle. The obiter observations of Mr. Justice Broomfield in 38 Bom LR.175 : AIR 1936 Bom 201, Were based on the rule of evidence laid down in Section 110 of the Evidence Act that possession is prima facie evidence of ownership. Since the provision of Section 110 of the Indian Evidence Act merely embodies rebuttable presumption, it follows, as stated by Mr. Justice Broom-field, that it is open to the defendant who Is in possession at the date of the suit to rebut the presumption by disproving the plaintiff's title. Hence Mr. Justice Broom-field concluded, by relying on the language of Section 110, that if the plaintiff's title is disproved by the defendant, the plaintiff cannot succeed.

16. It appears to us that a distinction must be made between the rule of evidence embodied in Section 110 of the Evidence Act and the principle on which the concept of possessory title is based. That principle is that possession constitutes by itself a limited title to the property, a title which is good against all except the rightful owner. This title, usually described as possessory title, has all the features of an estate In land. Like any other estate, it can be 'transferred inter vivos or by a testamentary disposition and can also be acquired by inheritance. As observed by Pollock and Wright in their 'an Essay on Possession' (Page 19).

'Further, possession in law is a substantive right or interest which exists and has legal incidents and advantage apart from the true owner's title. Hence it is itself a kind of title, and it is a natural development of the law, whether necessary or not, that a possessor should be able to deal with his apparent interest in the fashion of an owner not only by physical acts but by acts in the law, and that as regards every one not having a better title those acts should be valid.'

Thus possession has, two aspects -- it Is by itself a limited title which is good against all except the true owner and 'it is also prima facie evidence of ownership. As observed by Sir Lawrence Jenkins, C. J., in his judgment in Hari Khandu v. Dhondi Natha, (1906) 8 Bom LR 96, possession has a two-fold value: it is evidence of ownership, and is itself the foundation of a right to possession. A person who, while in peaceful possession, is dispossessed by a trespasser can file a suit and recover possession merely by ' proving his prior possession. The proof of prior possession in such a case is proof of the plaintiff's possessory title, and should not be looked upon as prima facie evidence of ownership, which the plaintiff is not required to establish against the defendant, the latter being a mere .trespasser. The defendant cannot resist a decree for ejectment by proving title in a third person, for such proof does not displace the limited possessory title which is enough for the plaintiff to succeed.

17. A suit tin possessory title must be distinguished from a suit filed under Section 6 of the Specific Relief Act of 1963 within 6 months of dispossession. The latter type of suit cannot be resisted on the ground of title, so that the suit can be maintained even against the true owner if he has dispossessed the plaintiff otherwise than in due course of law. A suit on possessory title, on the other hand, can be filed within twelve years of dispossession (Article 64 of the Limitation Act 1963) and the plaintiff can maintain -it against any person who does not have a better title.

18. Two leading English cases illustrate the confusion which arises from the failure to distinguish between the two aspects of possession - possession as prima facie evidence of ownership and possession constituting by itself a limited title to the property. In Doe v. Barnard, (1849) 13 QB 945, the plaintiff's lessor was In peaceful possession of the property for several years without being the owner thereof. It was held by the Court that the plaintiff was not entitled to recover possession from the defendant, although the latter had no title to the land. The Court observed that prior possession of the plaintiff's less or was prima facie evidence of title, but the title of the plaintiff's lessor having been disproved, the plaintiff could not succeed. Thus, in this case the court regarded possession merely as prima facie evidence of ownership and overlooked the fact that it was itself a title of a limited kind. The aspect of possession as constituting by itself an estate in land was, however, recognised in the other leading case Asher v. Whitlock, 1865 1 QB 1. There one Williamson had enclosed some waste land of a manor and built a cottage thereon. He devised the property by a will to his wife for her natural' life or so long as she remained unmarried, with remainder to his daughter in fee. After the deaths of the widow and the daughter a person who had no rights under the will remained in occupation of the property. The Court ordered him to be elected in a suit filed by the heir-at-law of the daughter. The Court held that the possession acquired by Williamson by enclosing a part of the waste land of a manor constituted an interest which could be defended against every person other than the rightful owner and which could be devised by will or acquired by inheritance. Cockburn, C. J. said in his judgment:--

'But I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine ..... It is too clear to admit of doubt, that if the devisor had been turned out of possession he could have maintained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against all the world but the true owner ............ The devisor might have brought ejectment, his right of possession being passed by will to his daughter, she could have maintained ejectment, and so therefore can her heir, the female plaintiff'.

19. The conflict which arose between these two leading cases (1849) 13 QB 945 and (1865) 1 QB 1, was resolved in Perry v. Clissold 1907 AC 73, which was a decision of the Privy Council in a case from New South Wales. There a certain land which -was in the possession of one F. Clissold was acquired by the State-of New Wales under a certain Local Act and the question was whether F. Clissold, not being the owner of the land, was entitled to compensation. The real owner was an unknown person who had not come forward to claim compensation within the time allowed. The Privy Council held that Clissold was entitled to compensation. Their Lordships observed:--

'It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitation applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.'

Their Lordships then referred to the conflict between (1849) 13 QB 945 and (1865) 1 QB) 1 and held that the decision in (1849) 13 QB 945 was not good law.

20. The principle of possessory title Is well illustrated by an earlier decision of the Privy Council in Mt. Sundar v. Mt. Parbati (1888) 16 Ind App 186 , which was a case from India. There after the death of a Hindu Zamindar Baldeo Sahai and his adopted son Praimsukh, his two widows were in possession of his movable and immovable properties. One widow filed a suit against the other widow for partition of the properties. It was found that a third person was the rightful owner of the properties left by the Hindu Zamindar and his adopted son. Nevertheless, their Lordships held that the claim for partition must be allowed. Their Lordships approved the following statement of law made by the lower court: 'Possession is a good title against all the world except the person who can shew a better title. By reason of his possession such person has an interest which can be sold or devised.' Referring to the two widows their Lordships said:

'Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no. one interested opposing. In these circumstances it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Praimsukh or of Baldeo Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants Js in the field, and the widows have therefore, each of them, an estate or Interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them.'

21. We can now revert to the recent decision of the Supreme Court in : [1968]3SCR163 . The Supreme Court held in this case that a regular suit based on prior possession without proof of title was maintainable against a person having no title to the property. The Court quoted with approval the following observation of Subramaniam Ayyar J. in Mustapha Sahib v. Santha Pillai ILR (1900) 23 Mad 179:

'.....That a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title.' The Supreme Court pointed out that this principle was now indirectly embodied in Article 64 of the Limitation Act of 1963, which provides a period of 12 years for a suit 'for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.' The Court referred to the leading cases (1849) 13 QB 945 : (1865) 1 QB 1 and the decision of the Privy Council in 1907 AC 73 and said:'The cases of the Judicial Committee are not binding on us but we approve of the dictum in 1907 AC 73 (Perry v. Clis-sold). No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of (1849) 13 QB 945 and (1865).1 QB 1 but it must be taken to be finally resolved by 1907 AC 73'.

We must accordingly hold that the obiter observations of Mr. Justice Broom-field in 38 Bom LR 175: AIR 1936 Bom 201 do not present the correct position in law. The plaintiffs in the present -case have established, that Fakir Mohammed Khan was in peaceful possession of the lands in suit for a number of years and that they (the plaintiffs) are the only heirs of Fakir Mohammed Khan. The plaintiffs have thus established their necessary title which is good against the defendants who had no subsisting title when they trespassed on the suit lands in or about 1948. The plaintiffs are, therefore, entitled to the possession of the lands.

22. Turning the plaintiff's claim for mesne profits, it is obvious that the claim must be confined to the period of three years before the filing of the suit. In this connection the learned trial Judge has given a finding that the defendants are In joint possession of the suit property. This finding has no support in the evidence on record. The first plaintiff herself stated in her examination-in-chief that the defendants were in joint possession of the lands for the first two or three years after their trespass in 1948 and that they are in separate possession thereafter. It is thus clear that during the period of three years prior to the suit the defendants were in separate possession of different parts of the suit property. They cannot be held to be jointly and severally liable for the mesne profits of all the lands in suit. It will, therefore, be necessary to ascertain the lands in the possession of each of the defendants and to determine the mesne profits to which each of them is liable for the period of three years prior to the suit We may add that, although the evidence regarding the income of the suit lands is meagre, we are not satisfied that the yearly income of the lands was only Rs. 2,500/- as held by the learned trial Judge. However, in view of our finding above, further evidence will have to be recorded for determining the income which could have been derived from particular suit lands in possession of the different defendants.

23. Mr. Kurdukar on behalf of the plaintiffs prayed that the plaintiffs should be allowed to amend the memorandum of appeal so as to reduce the claim for the purpose of court-fees by an amount of Rs. 20,000/-. In their suit the plaintiffs had claimed mesne profits for seven years before the suit at the rate of Rs. 5,000/-per year. Their claim for mesne profits for a period of more than three years prior to the suit was clearly barred by time, but no objection in that behalf was taken in the defendants' written statements and limitation was also not pleaded at the time of arguments in the trial Court. Mr. Kurdukar argued that, through oversight, it was not realised by the plaintiffs that their claim to mesne profits prior to the suit must be reduced from Rupees 35,000/- to Rs. 15,000/-. The plaintiffs are litigating as paupers and it is not proper that they should be saddled with unnecessary costs. Under the circumstances, we allow the amendment in the memorandum In appeal and direct that the claim in appeal for the purposes of court-fees should be reduced from Rs. 38,543-12-0 to Rs. 18,543-12-0.

24. In the result the appeal is allowed, the decree of the trial Court is set aside and the defendants are directed to deliver possession of the suit properties to the plaintiffs. Regarding mesne profits, the trial Court will ascertain the lands which we're in the possession of each of the defendants for the period of three years prior to the suit and the amount of mesne profits to which each of them is liable. For this purpose parties will be at liberty to lead additional evidence. On the basis of the evidence so recorded the trial Court will pass a decree for mesne profits in the plaintiff's favour in respect of the period of three years before suit. Future mesne profits will be determined as provided in O. 20, R. 12 of the Civil P. C. The Government are entitled to recover from the defendants the court-fee payable on the plaint on a valuation of Rs. 25,670/- (i. e. the total valuation, reduced by the time-barred claim for mesne profits for a period of more than three years before suit). The remaining court-fee on the plaint shell be recoverable from the plaintiffs. The defendants will pay the plaintiffs' costs in the trial Court The court-fees on the ' memorandum of appeal, as amended in the manner stated above, will be recoverable by the Government from the respondents-defendants. The respondents-defendants will also pay the plaintiffs' costs of this appeal.

25. Appeal allowed.


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