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P.G. Venkataswamy and ors. Vs. Mir Zahid HussaIn Saheb (Sha) and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberFirst Appeal Nos. 8 and 13 of 1968
Judge
Reported inAIR1973Kant145; AIR1973Mys145
ActsRegistration Act, 1980 - Sections 28; Mohammedan Law; Bombay Public Trust Act, 1950; Evidence Act, 1872 - Sections 116; Code of Civil Procedure (CPC) , 1908 - Sections 99 - Order 20, Rule 12
AppellantP.G. Venkataswamy and ors.
RespondentMir Zahid HussaIn Saheb (Sha) and ors.
Appellant AdvocateG.V. Thimmapaiah and ;S.K. Venkataranga Iyengar, Advs.
Respondent AdvocateS. Doraiswamy Iyengar, Adv.
DispositionAppeal dismissed
Excerpt:
- karnataka municipalities (president & vice-president) election rules, 1995. rule 13(2): [ashok b. hinchigeri, j] commencement of reservation process statute speaks of reservation for sc category first, whereas rules speaks of reservation for st category conflict between the statute and the rules effect - held, when the statute first speaks of reservation for sc category, the rules speak of reservation for st category first, it is trite position in law, that in case of the conflict between the statute and the rules, the former shall prevail over the latter. further, article 243 t(4) of the constitution speaks of reservation for the sc category first. therefore, as the supreme law if the land speaks of reservation for the sc category first, the government is justified in starting the.....venkataramiah, j.1. these two appeals arise out of the decree passed in o. s. no. 5 of 1964 on the file of the first additional civil judge at bangalore. the above suit was originally instituted as o. s. no. 2 of 1958 on the file of the district judge. civil station at bangalore and on reorganization of the jurisdiction of the civil courts under the maysore civil courts act. 1964. the suit stood transferred to the file of the first additional civil judge, bangalore.2. the plaintiffs who are three in number claiming to be the trustees of a trust known as 'kulsum bibi trust' instituted the above suit for recovery of three items of immovable properties described in the schedule attached to the plaint. items 1 and 2 are two buildings and item 3 is a vacant site situated in that part of.....
Judgment:

Venkataramiah, J.

1. These two appeals arise out of the decree passed in O. S. No. 5 of 1964 on the file of the First Additional Civil Judge at Bangalore. The above suit was originally instituted as O. S. No. 2 of 1958 on the file of the District Judge. Civil Station at Bangalore and on reorganization of the jurisdiction of the Civil Courts under the Maysore Civil Courts Act. 1964. the suit stood transferred to the file of the First Additional Civil Judge, Bangalore.

2. The plaintiffs who are three in number claiming to be the trustees of a trust known as 'Kulsum Bibi Trust' instituted the above suit for recovery of three items of immovable properties described in the schedule attached to the plaint. Items 1 and 2 are two buildings and Item 3 is a vacant site situated in that part of Bangalore City which was formerly known as Civil and Military Station. Bangalore. The case of the plaintiffs as disclosed in the plaint is that the suit properties originally belonged to one Peer Khwaja Mod, Ismail alias Sher Ali Shah, hereinafter referred to as Sher Ali Sha who was a resident of Bombay. Sher Ali Sha died on 1-6-1933 leaving behind him his only sister Kulsumbi as heir. Kulsumbi executed a deed of trust on 20-9-1938 (Exhibit P-21) constituting the suit properties and some other properties situated in Bombay into a public trust or a wakf and appointed herself and some others as trustees. Kulsumbi died on 5-12-1940.

3. By virtue of a clause in the deed of trust, the members constituting the Board of Trustees were changed from time to time under two deeds dated 16-5-1946 (Exhibit P-22) and 6-12-1948 (Exhibit P-23) respectively and that under the last deed the present plaintiffs came to be appointed as the members of the Board of Trustees of the said trust Plaintiffs 2 and 3 executed a power of attorney in favour of plaintiff 1 to conduct the above suit on their behalf also.

4. The plaint further discloses that Item 1 of the plaint schedule wasin possession of defendants 2 and 3 and that defendants 1, 4, 5 and 6 were also claiming the said item as belonging to defendant 1. Item 2 was in possession of defendant 7 and that Item 3 was in possession of defendant 9. It is alleged that defendants 8 and 10 to 16 were claiming as tenants or mortgagees of the suit properties. The plaintiffs pleaded that the defendants were not entitled to be in possession of the suit properties, and. therefore, prayed for a decree declaring that the suit properties were wakf properties of Kulsum Bibi Trust and directing defendants 1 to 6 to put the plaintiffs in possession of Item 1 free from the claims of defendants 14 and 15 who claimed to be mortgagees under defendant 1 directing defendants 7 and 8 to put the plaintiffs in possession of suit Item 2 free from the claim of defendants 16 and 17 who claimed to be the mortgagees, directing defendants 9 to 13 to put the plaintiffs in possession of Item 3 after removing the superstructure of the said site; directing enquiry into the mesne profits and the further consequential reliefs.

Although defendant 1 filed a written statement before the court below claiming to be the owner of Item 1. he did not seriously pursue his case before the trial court and in spite of the fact that a decree had been passed against him in the suit directing to deliver possession to the plaintiffs, he has not preferred any appeal. It is also the case of defendants 4, 5, 6, 14 and 15 who claimed under defendant 1 end they have also not filed any appeal. So it is unnecessary to refer to the case put forward by defendants 1, 4, 5, 6, 14 and 15. Defendant 2 died during the pendency of the suit. His legal representatives were brought on record. Defendant 3 who is the wife of defendant 2 was also brought on record as one of the legal representatives of defendant 2. We are concerned in these appeals with the case put forward by defendants 2, 3, 7 and 9. The persons claiming under defendants 7 and 9 have also not filed any appeal.

5. R. F. A. No. 8 of 1968 is filed by defendants 7 and 9 and R. F. A. No, 13 of 1968 is filed by defendant 3 and the legal representatives of defendant 2.

6. Defendants 2 and 3 claiming to be the owners of Item 1 of the plaint schedule, filed a common written statement denying the title of the plaintiffs to file the suit. It was urged that the trust on the basis of which the plaintiffs claimed the property was not a valid one. They also claimed title to the property on the basis of their adverse possession.

7. Defendant 7 pleaded that he had become owner of Item 2 of theplaint schedule by virtue of a sale deed executed in his favour by one Aishabi and her husband on 26-8-1953 and that the said Aishabi had purchased the said property from one Mohd. Jamal under a sale deed dated 14-11-1950. Mohd. Jamal was stated to be the heir of Sher Ali Sha. He also while dyeing the validity of the trust claimed the property by adverse possession.

8. Defendant 9 claimed that he had become the owner of Item 3 of the plaint schedule under a sale deed executed in his favour by one Kishan Singh on 30-9-1957. It was pleaded that the interest in the said property had devolved on Mohd. Jamal after the death of Sher Ali Sha and that after successive transfers. Kishan Singh the vendor of defendant 9 bad become the owner of the property. The validity of the trust was also denied by him and he also set up his title to Item 3 on the basis of adverse possession beyond the statutory period.

9. On the basis of the pleadings before it. the trial court framed number of issues. Of them the main questions which came up for consideration were:--

(1) Whether kulsumbi was the sole heir of Sher Ali Sha and whether the trust created by her was a valid one?

(2) Whether the plaintiffs were in possession of the properties within a period of 12 years prior to the date of the suit and whether the defendants had perfected their title by adverse possession; and

(3) Whether defendants 7 and 9 had acquired title to the properties under the sale deeds relied on by them? After negativing the contentions urged by the defendants, the court below proceeded to make a decree in favour of the plaintiffs. Hence these appeals.

10. It is not disputed that the suit properties originally belonged to Sher Ali Sha and that he died on 1-6-1938. Whereas the case of the plaintiffs is that Kulsumbi was the sole heir of Sher Ali Sha the contesting defendants claim that there were heirs other than Kulsumbi also. It is necessary to refer at this stage to the relationship of some of the parties to the suit as disclosed in the evidence of plaintiff 1 who has been examined as P. W. 5 in the case and from some of the documents produced before the court. We do not find any reference to the geneology or relationship in the evidence of the witnesses examined on behalf of the defendants. Hence, the only piece of evidence in this case is that given by plaintiff 1.

11. One Katun Banu was the wife of Sher Ali Sha. She died in 1929. Khatoon Banu. Mahabooba Banu wife of Mohd. Jamal. Meer Ahmed Shah andMeer Hasan Shah were children of one Mir Yahya Shah by his second wife Khatijabi, Mir Yahya Shah's first wife was Asrajunissa and by her he had a daughter by name Shahar Banu. Plaintiff 1 Mir Zahid Hussain Sha is the son of the said Shahar Banu. The foregoing shows that plaintiff 1 is a close relative of Sher Ali She and his evidence regarding the question whether Kulsumbi was the only heir left behind by Sher Ali Sha or there were any others. has to be accepted in the absence of any other evidence placed in rebuttal by the defendants before court. It is not disputed before us that Kulsumbi was the sister of Sher Ali Sha. What remains to be considered in this case is whether there was any other heir who was entitled to succeed simultaneously with Kulsumbi to the estate of Sher Ali Sha. As already stated the evidence of P. W. 5 appears to be conclusive on the above Question. He has stated that there was no other heir of Sher Ali Sha apart from Kulsumbi. This view of ours receives support from some of the documents produced in the case.

12. Exhibit P-52 is a notice issued by Wacha & Co. Solicitors. Bombay, on behalf of Mohd. Jamal on 30-10-1944, in which it is stated that Sher Ali Sha died intestate leaving behind him his sister Kulsumbi and also Mohd. Jamal and his brother Gulam Mohiuddin. being the sons of one Gulam Rasool who was the maternal uncle of Sher Ali Sha and another heir by name Katijabi who was the sister of the mother of Sher Ali Sha. The relationship set out in Exhibit P-52 is not spoken to by any witnesses. It may be mentioned here that Mohd. Jamal was alive when the trial of this case was going on and that he was not not examined by the. defendants in support of their case. But on the other hand, the evidence of plaintiff 1 is clear on the relationship of Mohd. Jamal to the family of Sher Ali Sha. Mohd. Jamal is stated to be the husband of Mahabooba Banu who was the sister of Khatoon Banu, wife of Sher Ali Sha. Mahabooba Banu as the heir of Khatoon Banu got notices issued through her lawyer to the Trustees claiming a share in the mahar amount which was payable by Sher Ali Sha on the death of Khatoon Banu to her heirs.

Exhibit P-84 was issued on behalf of Mahabooba Banu by a lawyer at Mysore to Jamail Sait on 8-12-1940 claiming her share of mahar amount. In that notice it is stated that after the death of Sher Ali Sha his sister Kulsumbi came into possession of his estate and had appointed Jamail Sait as one of the trustees along with others under a trust deed. He was therefore calledupon to pay Mahabooba Banu's share amount of the mahar from out of the estate of Sher Ali Sha. Exhibit P-85 is another notice issued on the same dav by the same counsel to one Hussain Ali Sha Kashmiri who was another trustee. Exhibit P-86 is the third notice of the same day issued to Kairach who was the Commissioner of Bombay making a similar demand. In none of these three notices, there is any reference to the fact that apart from Kulsumbi there was some other heir who was entitled to the estate of Sher Ali Sha.

It is significant that in these notices there is no reference to the present claim of the defendants, namely that Mohd. Jamal the husband of Mahabooba Banu was also a heir of Sher Ali Sha. If Mohd. Jamal was really one of the heirs, Mahabooba Banu would have stated in the notices that the trust itself was void or inoperative for the reason that one of the heirs of Sher Ali Sha could not have constituted all the properties belonging to Sher Ali Sha into a trust without conceding the share of the other co-heir. These notices were followed up by proceedings in a Civil Court. Exhibit P-46 is copy of the plaint in O. S. No. 124 of 1941-42 filed by Mahabooba Banu wife of Mohd. Jamal. Defendants 1 and 2 therein were the two trustees under the trust created by Kulsumbi and defendants 3 and 4 therein were brothers of Mahabooba Banu. The said suit was dismissed on the ground of limitation ,and the decree passed therein was confirmed in appeal.

13. On this point we have some more documents on which the plaintiffs in this case have relied upon in support of their case. Exhibit P-21 is the trust deed in which Kulsumbi has stated that she was the only heir of Sher Ali Sha. After the trust was constituted the Solicitors of Kulsumbi and the Trustees of the trust created by her. M/s. Devacha and Thakar have corresponded with defendant 2 in the case who was in possession of Item 1 of the plaint schedule. Exhibit P-1 is a reply notice dated 3-10-1938 issued to M/s. Devacha and Thakur by Sri L.S. Raju. an Advocate of Bangalore Bar. on behalf of defendant 2. The said reply refers to Item 1 of plaint schedule. The said reply notice bears the signature of defendant 2. This and the other notices exchanged between Sri L.S. Raju and M/s. Devacha and Thakur. which are marked as exhibits in this case, are proved through the evidence of Sri G.R. Doreswamy. an Advocate of Bangalore Bar who was at the relevant point of time working in the chambers of Sri L.S. Raju. He has identified the signature of Sri L.S. Raju and of defendant 2. which are marked as Exhibit P-l (a) and (b) respectively,Exhibit P-2 is a notice issued by Sri L.S. Raju on behalf of defendant 2 to M/s. Devacha and Thakur on 25-8-1942. The circumstances leading to the issue of the said notice as disclosed by the contents of the said notice were these: One Sri H. Srinivasa Rao, an Advocate of Bangalore Bar, who has been examined as P. W. 2 in this case, had issued a notice on behalf of Syed Hyder Shah Sikandar Shah. Sardar Shah. Mir Hussain Shah, Mir Ahmed Shah. Mohd. Jamal. Ghulam Mohiyuddin and Mahabooba Banu to defendant 2 stating that Item 1 of plaint schedule belonged to the persons mentioned above on. the death of Sher Ali Sha and that defendant 2 should pay the rent navable in that behalf to those persons. On receipt of the said notice, a true copy of which has been marked as Exhibit P-4 in this case, defendant 2 approached Sri L.S. Raju to inform M/s. Devacha & Thakur of Bombay who were acting on behalf of the trust, that such a claim had been made and that suitable reply had been sent in that connection to Sri H. Srinivasa Rao. A copy of the reply sent to Sri H. Srinivasa Rao was enclosed to Exhibit P-2. The said copy is marked as Exhibit P-3 in this case.

In Exhibit P-3 it was stated as follows by Sri L.S. Raju acting on behalf of defendant 2:--

'My client does not admit the allegations in your notice and any right on the part of your clients or any of them in the property having any right to cause the present notice to be issued to him. Your notice does not eet forth exactly and in detail how your clients are entitled to get the present notice issued on 21st August 1942. So far as the schedule premises viz. No. 22, Pulliar Koil Street. Shoolay. C. & M. Station. Bangalore, is concerned, my client was occupying a portion of the above premises as tenants even prior to 26th September. 1938, on which date he received a registered letter from M/s. Devacha & Thakore. Solicitors, Nos. 22-26, Dalai Street, Fort. Bombay, in which inter alia it was stated--

(a) that the aforesaid property belonged to one Peer Khwaja Mohomed Ismail Sherali Shah son of Peer Khwaja Mahomed Ebrahim Saheb Kashmiri;

(b) that the said Peer Khwaia Mahomed Ismail Sherali Shah died at Bombay on the 1st June 1938. leaving one Bai Kulsumbibi his daughter, as his only heir, according to Mohammadan law;

(c) that the said Bai Kulsumbibi had executed a deed of settlement on the 20th September 1938 appointing herself and others as trustees of the property in question and other properties, and

(d) Lastly that my client should pay the rent of the above properties to the trustees or to any of them authorised by all trustees.

Accordingly, my client has attorned them alone to the said trustees and has been paying to them all the rents.

XX XX XX

As such, my client having recognised the title of the trustees in question and continuing in occupation as tenant of the trustees, is estopped in law from recognising any other person even if the right of your clients is true, which, however, my client does not and cannot admit'

14. Exhibits P-29 and P-30 are letters dated 13-3-1939 and 10-4-1939 written by defendant 2 to Kalsumbi. Ex. P-31 dated 9-7-1942 end Ex. P-33 dated 10-10-1949 are letters written by defendant 2 to M/s. Devacha & Thakur. It is no doubt true that defendant 3 who has been examined as D. W. 2 has denied the signature of defendant 2 in Exhibits P-29. P-30. P-31 and P-33. We have compared the signatures of Mohd. All in these four letters with Exhibit P-l (b) which is the signature of defendant 2 proved by the evidence of Sri G.R. Doreswamy P. W. 1 and we are satisfied that they are signatures of defendant 2. A reading of these four letters would show that defendant 2 was treating Kulsumbi and after her death the Trustees as the landlords of Item 1 and that he had attorned to them on the death of Sher Ali Sha. As already stated there is practically no reliable evidence on the side of the defendants to hold that Sher Ali Sha had left behind him any heir other than his sister Kulsumbi. We are of the opinion that Kulsumbi was the sole heir of Sher Ali Sha and that his estate devolved on her on his death, and that the alternative case set up by the defendants that one Mohd. Jamal was one of the heirs of Sher Ali Sha has been rejected.

15. The next question for consideration relates to the validity of the trust. In Exhibit P-21, which is the registered trust deed executed by Kulsumbi in respect of the suit properties and some other properties situated at Bombay, a wakf was created by her. The said document contains a declaration of endowment bv Kulsumbi who was the absolute owner of the properties. She was a Mohammedan by faith and she dedicated the properties for religious pious and charitable purposes recognised by the Mohammedan Law. She appointed herself and some others as the trustees. The dedication is permanent. Since the declaration has been made in writing and the wakf in question relates to immovable properties ofmore than Rs. 100/- in value, the document containing such a declaration has to be registered and the document in question has been registered with the Sub-Registrar of Bombay. The Sub-Registrar of Bombay had jurisdiction to register the document under Section 28 of the Indian Registration Act of 1908 since some of the immovable properties covered by the deed were situated within his jurisdiction.

What however was argued on behalf of the defendants who are appellants before us was that since the document had not been registered again before the Sub-Registrar having jurisdiction over the area which was formerly known as Civil and Military Station, the document could not affect the suit properties which were situated in the Civil and Military Station. An argument was sought to be constructed on a certain notification said to have been issued in or about 1937 by the Resident and Crown Representative who was in charge of the administration of the Civil and Military Station that Section 30 of the Indian Registration Act. 1908 which was in force throughout British India at the relevant point of time, was not applicable to the instant case.

The notification on which reliance was placed has not been made available to the court. We have not been able to appreciate the contentions urged on behalf of the defendants in the absence of the said notification. No doubt there is a reference to the same in the judgment of the lower court, but the lower court however found that the fact that in a certain notification said to have been issued by the Resident and Crown Representative, certain modifications had been made to the Registration Act of 1908 was not sufficient in the eye of law to take away the case from the operation of Section 28 of the Indian Registration Act of 1908. The area in question within which the suit properties are situated was a part of British India until it was retroceded and became part of the former princely State of Mysore in the year 1947. A document registered in any part of British India before a Sub-Registrar within whose jurisdiction some of the properties covered by the deed are situated, would operate as against the other properties covered by the same deed situated in any other part of British India. We do not find, therefore, any substance in this contention.

16. One other contention which is urged on behalf of the contesting defendants is that since some portion of the income from the wakf properties was reserved for the benefit of some individuals, the transaction cannot be considered as bringing into existence a wakf. Insupport of this dependence was placed on the provisions of the Bombay PublicTrusts Act. Bombay Public Trusts Act is a legislation of the Bombay State Legislature and, therefore, it has not got extra territorial force. The properties are situated in Civil and Military Station, Bangalore. Hence the above contention is untenable. Under Mohammedan Law it is well known that a wakf would not be void or bad on account of some benefit having been reserved in favour of the person who makes the wakf or some other individuals. The said view expressed in Principles of Mohammedan Law by Mulla has been affirmed by the Supreme Court in Garib Das v. Munshi Abdul Hamid, : AIR1970SC1035 . Hence there is no substance in this contention also. The trust or the wakf in question created by Kulsumbi. is. therefore, to be held as valid and operative in so far as the suit properties are concerned.

17. We shall take up hereafter for consideration the case put forward individually by the defendants who are appellants before us,

18. Sri S.K. Venkataranga Iyengar the learned counsel for defendant 3, submitted that the suit has to fail on account of multifariousness and that defendant 3 had perfected her title by adverse possession to item 1 of the plaint schedule. It is no doubt true that the plaint in this case suffers from multifariousness. The properties involved in this case are immovable properties. Defendants 2 and 3 are interested in item 1, defendant 7 is interested in item 2 and defendant 9 is interested in item 3 and in these circumstances it appears that the provisions of Order 2. Rules 3 and 4 of the Code of Civil Procedure have been violated. But none of the defendants took up this plea in their written statements. No issue was framed in this regard. Presumably because some of the issues were common, the parties allowed the case to be tried and decided by the trial Court. Rule 7 of Order 2 of the Code of Civil Procedure states that all objections to misjoinder of parties and causes of action should be taken at the earliest opportunity and when it is not so done, such objection should be deemed to have been waived. Section 99 of the Civil P. C. precludes an appellate Court from interfering with the judgment and decree passed by a trial Court on the ground that the suit is vitiated on account of multifariousness unless it is shown that such multifariousness has resulted in failure of justice. It reads:

'No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity inany proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court'

It is not shown that on account of multifariousness the merits of the case or the jurisdiction of the trial Court are affected. We do not. therefore, find sufficient reason to interfere with the judgment and decree of the Court below on the ground that the suit was bad for misjoinder of parties and causes of action,

19. The next ground urged by SriVenkataranga Iyengar is one relating to the title of defendant 3 on the basis of adverse possession. Defendant 3 is the wife of defendant 2. Exhibits P-1, P-2, P-3, P-5, P-29, P-30, P-31 and P-33 to which reference has already been made, clearly establish that at any rate till about the year 1949-50 defendant 2 acknowledged that Sher Ali Sha and after his death Kulsumbi and after the trust was constituted the trust in question were the successive landlords of item 1 of plaint schedule. In Exhibit P-3 there is a clear acknowledgment of the attornment said to have been made by defendant 2 to the trustees. We have extracted the relevant portions of Ex. P-3 earlier in the course of the judgment.

Defendant 3 who has been examined as D. W. 2 in this case also has stated in the course of her deposition that Sher Ali Sha had allowed her husband defendant 2 to be in occupation of the house, and at that time she was present. According to her this took place about 35 years prior to her examination. Defendant 2 has admitted in some of the Exhibits to which reference has already been made that he was only a tenant of Sher Ali Sha and after him he was the tenant of Kulsumbi and the trust. In these circumstances, defendant 3 could have been living in or in occupation of item 1 only as on agent or representative or dependent of defendant 2. She could not have been in possession of the property under colour of any independent title and it is not possible to agree with the submission made by Sri Venkataranga Iyengar that defendant 3 was in possession of the property in her own right independently of the possession of defendant 2 at any rate till 1950. There is no evidence in this case to show that the character of possession of defendant 3 in any way altered even after 1949-50 during which year it is suggested that defendant 2 left Bangalore for good. Even if it is to be held that in 1950 the character of possession of defendant 3 stood altered, it would not be of any avail because the suit is instituted in the year 1958. We are however of the opinion that it is not open to her in the circumstances of this case to deny the title of the landlord, shebeing an agent of defendant 2 during the continuance of the lease as provided in Section 116 of the Evidence Act.

Sri Venkataranga Iyengar relied upon the decision of the Privy Council in Krishna Prasad Lal v. Baraboni Coal Concern Ltd in support of the case of defendant 3. namely, that even though a tenant was precluded from denying the title of the landlord at the commencement of the tenancy, it may be possible for such a tenant to plead that the landlord had lost title to the demised property at a subsequent point of time. The above decision of the Privy Council instead of supporting the case of defendant 3. supports the case of the plaintiffs. It is laid down in that decision as follows:--

'Section 116. Evidence Act. does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. The section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in suchcase there may be other grounds of estoppel, e.g. by attornment. acceptance of rent etc. In this sense it is true enough that the principle only applies to the title of the landlord who 'let the tenant in' as distinct from any other person claiming to be reversioner.' (underlining is by us).

20. It is clear from a reading of the above that if a person attorney in favour of a stranger, from that time onwards the stranger would be entitled to claim the benefit of the provisions of Section 116 of the Evidence Act on the ground that he himself had become landlord from such date. In the instant case, defendant 2 attorned to the trust in question in the year 1942 as could be gathered from Ex. P-3 and the subsequent correspondence between defendant 2 and the Solicitors of the trust who were at Bombay. The other decisions relied upon by Sri Venkataranga Iyengar are more or less on the same lines as that of the Privy Council referred to above. We are of the opinion that at no point of time defendant 3 entered upon item 1 of the plaint schedule independently and in her own right and asserted her hostile title. She has always been only either an agent or a representative of defendant 2. If defendant 2 cannot deny the tenancy under the trust and cannot set up adverse title in himself defendant 3 claim-ins under him or functioning as his agent or representative, cannot also do so. We, therefore, hold that the case of acquisition of title by adverse possession set up on behalf of the defendants has to be rejected and it is accordingly rejected.

21. Now coming to the case of defendants 7 and 9. it is seen that they rely on the sale deeds executed by Aishabi and Kishan Singh who are alleged to have derived title from Mohd. Jamal. We have already held that Mohd. Jamal was not an heir of Sher Ali Sha and he could not convey any title in those properties and defendants 7 and 9 claiming through him. cannot therefore have any title to the suit properties. The alternative case of defendants 7 and 9. namely, that they had acquired title to the properties by adverse possession, is equally untenable. Defendant 7 claims to have purchased the property somewhere in the year 1953 and defendant 3 claims to have purchased the property in the year 1957. Their evidence is that they have been in possession of the property from the date of their respective purchase. They are not in a position to give any evidence as to who was in possession of the properties that were sold to them previously. Mohd. Jamal has not been examined in this case nor the persons in whose favour Mohd. Jamal had sold the properties under whom defendants 7 and 9 claim, have been examined. The evidence on this question of defendants 7 and 9 who have been examined as D. Ws. 3 and 4 is very meagre and scanty. P. W. 5 on the other hand has stated that items 2 and 3 were in the possession of the trust till about 1950. He has given details of management of the said items by the trust There is no reason to disbelieve this evidence. We therefore, reject their case of acquisition of title by adverse possession also.

22. Sri Thimmappaiah. the learned counsel for defendants 7 and 9, submitted that the Court below was wrong in calling upon these defendants to pay mesne profits. He urged that because defendants 7 and 9 were bona fide purchasers for value, they should not bemulcted with the responsibility of paying mesne profits. We have already come to the conclusion that defendants 7 and 9 have been in possession of the properties, without any title. They are not shown to be bona fide purchasers. Hence, we do not find any justification either in law or in equity to uphold the above contention.

23. No other contention was urged by any of the parties.

24. In the result, we confirm the judgment and decree passed by the Courtbelow and dismiss the appeals with costs.


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