1. The plaintiff (respondent before us), who is one of two Khoti sharers in the village of Panhali, brought this suit to recover possession of certain lands which formed part of an occupancy tenancy Khata. The lands comprised in that Khata originally belonged to the family of the Bhatkar defendants (Nos. 1 to 7). Plaintiff's case is this. At a partition effected in or about the year 1890, between the first defendant Dhana and his three brothers, Shiva, Ragho and Zil, the suit lands fell to the share of Dhana. In 1895, they were put up to sale in execution of a money-decree passed against Dhana, and purchased by the eighth defendant. In 1899, he obtained possession of the lands through the Court and in 1901 surrendered them to the plaintiff. Since then, plaintiff had been in continuous possession and enjoyment of the lands until 1916 when he was wrongfully dispossessed by defendants Nos. 2 to 7.
2. The first defendant Dbana did not resist the plaintiff's claim. It was contested by the third defendant (now appellant) who is a son of Zil. He contended that at the said partition Dhana did not get any share at all in the family estate, and was never in possession of the suit lands ; the auction-sale was void, being in contravention of Section 9 of the Khoti Settlement Act, 1880 ; the auction-purchaser never obtained possession of the lands ; and finally, he did not admit that plaintiff had ever been in possession.
3. On those pleadings and on the evidence adduced by the parties the learned appellate Judge, in agreement with the trial Judge, held that after the said partition Dhana bad been in possession and enjoyment of the lands in suit; that he never objected either to the auction-sale or to the purchaser taking possession ; that in 1911 he himself executed a rent-note in favour of the plaintiff; and that the plaintiff came into actual possession of the lands in 1901 and continued therein until 1916 when he was dispossessed by defendant No. 3 who had no title to those lands. He refers to certain rent-notes relied on by the plaintiff' and says :
They prove Dhana'a possession of the bagayet land as plaintiff's tenant Taking this along with the sale-certificate and the tabapavti the clear inference is that all the suit lands belonged to Dbana and passed to the possession farad of defendant No. 8 and then of plaintiff. Defendant No. 3 has lately come back from Bombay and he has taken possession...of the suit property.
4. As for the validity of the auction-sale the Judge observes:
From the deposition of the other Khoti sharer (Exhibit 53) and the admission of defendant No. 3 in his examination-in-chief that the rent used to be paid to plaintiff, I conclude that the suit lands are wholly in the Khoti share of plaintiff. He brought these lands to sale and consequently his consent to alienation may be presumed. In fact all these transactions took place with the consent of the Khoti plaintiff and the permanent tenant Dhana. Seobion 9 therefore of the Khoti Act does not stand in plaintiff's way.
5. The ninth section, as it now stands, is the result of the Amending Act VIII of 1912 ; and it was urged before us on the appellant's behalf that the auction-sale having taken place in 1908 its legality should be determined according to the provisions of that section as it then was. It seems to me, however, that upon the concurrent findings of facts to which I have above alluded, that question has lost all its importance. It is not shown that the lands in suit ever stood in Dhana's Khata. When the property was put up to sale in 1908 neither he nor any other person offered any objection. The purchaser having received possession through the intervention of the court surrendered it to the plaintiff Khot in 1901. Later, Dhana himself executed the rent-note Exhibit 89 in his favour. It was not until 1916 that he was wrongfully dispossessed by defendant No. 3 who has no title whatever to these lands. It was this dispossession which led to certain proceedings which culminated in this suit. Assuming then that the auction-sale was void, as being in defiance of the provisions of the said Act, plaintiff has been in possession for about fifteen years without a title. In my opinion, this long possession is sufficient to enable him to eject the third defendant. This adverse possession has extinguished Dhana's right to the actual possession of the land. It may be that it did not also operate to annihilate his occupancy rights (if any) which it was competent to him to transfer to the Khot: Vishnu v. Babla (1920) 23 L.R. 411. It is admitted, however, that the plaintiff alone has been recovering the rents all these years; and the other Khoti sharer (Exhibit 53) lays no claim to these lands. Dhana submitted to his interest being scold in 1895, and later took up the lands as plaintiff's tenant. He does not dispute the plaintiff's claim in these proceedings. It is, therefore, clear that if he possessed occupancy rights before 1895, he resigned the lands within the meaning of Section 10 of the Act. But, however that may be, we are now concerned not with Dhana but with defendant No. 3, who is a wrong-doer.
6. It is true that the plaintiff did allege title by sale-certificate ; but he by his plaint also referred to and relied upon his long possession between 1901 and 1916. This possession, which by the concurrent findings of the lower Courts has been satisfactorily proved, entitles the plaintiff to maintain ejectment against the third defendant, who has no title, who is a wrongdoer, and who dispossessed him in or about 1916: Pemraj Bhavaniram v. Narayan Shivaram Khisti I.L.R. (1882) 6 Bom. 215. The following pronouncement, made by the Privy Council in Ismail Ariff v. Mahomed Chouse (1893) L.R. 20 L.A. 99, is to the point:
The possession of the plaintiff was sufficient evidence of title as owner against the Defendant. By Section 9 of the Specific Relief Act (Act I of 1877), if the Plaintiff had been dispossessed otherwise than in due cornea of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in auto suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrongdoer from interfering with his possession. The Appellate Court...has dismissed the suit. Consequently, the Defendant may continue to willfully, improperly, and illegally interfere with the plaintiff's possession, as the learned Judges say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed.
7. The learned pleader for the appellant has relied on certain observations made by the Privy council in Dharani Kania v. Gabar Ali : (1913)15BOMLR445 he argues that those observations shew that in a case of this nature it is not sufficient for the plaintiff to prove his prior peaceful possession-he must also prove his title. I do not agree with him; those observations should be read in their context. In that case, plaintiffs as Zamindars sued to eject the defendants from possession of seven puras or 592 bighas of land. In the course of their judgment their Lordships recorded their finding, which is important, in these terms (p. 450):
The defendants-respondents were for more than twelve years before the commencement of this suit in possession of the seven puras or 592 bighas of land in dispute.
8. It was with reference to the facts so found that they made these observations on which reliance is now placed (p. 451):
The suit is one for the ejectment of persons who admittedly were at the date of suit in possession of the seven puras of land from which it is sought to eject them. It lay upon the plaintiffs to prove not only a title as against the defendants to the possession, but to prove that the plaintiffs had been dispossessed or had discontinued to be in possession of the lands within the twelve years immediately preloading the commencement of the suit.
9. It is obvious that there is nothing either in these observations or elsewhere to indicate that their Lordships dissented from the principles laid down in Asher v. Whitlock (1865) L.R. 1 Q.B. 1. In the present case plaintiff had been in exclusive possession of the lands in suit for over twelve years when he was wrongfully dispossessed by the appellant.
10. For these reasons, I would affirm the decree and dismiss the appeal with costs.
11. I agree.