1. This second appeal arises out of a suit brought by two ladies who, as daughters of one Bisharat Ali, laid an action in ejectment against certain persons, purchasers of the property in dispute. These last named persons are in possession of that property under a sale-deed executed in their favour by one Kasim Ali, a son of the same Bisharat Ali. Kasim Ali was arrayed as co-defendant with his vendees.
2. They also asked for mesne profits.
3. Both the Courts below decreed the claim. The appellants, who are some out of the transferees from Kasim Ali, have come here in second appeal. They set out in their memorandum of appeal four pleas. The first and second were not pressed, but the third and fourth have been maintained, and we are indebted to the learned advocate who appeared for the appellants for a very able, elaborate and exhaustive argument on the remaining pleas. Before entering upon this argument it is better to set out the facts of the case.
4. The property in dispute was originally the property of one Musammat 'Wazir Jan. She died on the 18th of December 1889, leaving no direct heirs. The four nephews of her deceased husband took possession of this property without any legal title to the same. Part of this property was waqf property, but with this part of the property we are not concerned in this second appeal. With the consent of the remaining nephews, one nephew, Bisharat Ali, was appointed manager of the waqf and recorded as owner of the property in dispute. Bisharat Ali died on the 7th of August 1890, and on August 9th, 1890, Kasim, suri of Bisharat Ali, the present respondent, was in turn recorded as owner of the disputed property. The three nephews sued Kasim for partition. They obtained three-fourths of the property and the remaining fourth was left in the hands of Kasim. Kasim appears to have been considerably in debt. His property was brought to sale and purchased by the appellants. On the 7th of August 1902 the daughters of Bisharat Ali instituted the present suit against their brother Kasim and his transferees for the share in the property to which they lay claim as heirs of Bisharat Ali,
5. If these facts have been correctly stated, the action which I have to consider is an action in ejectment laid by the heirs of a trespasser whose only title to the land was possession, heirs who at the highest had a right to possession, but have never entered upon possession, against transferees from a trespasser who are in possession and whose possession in their own persons and in the person of their transferors has been peaceable possession for twelve years all but two days.
6. The contention on behalf of the appellants is that the appellants, inasmuch as they are transferees from Kasim, who was and has been in peaceable possession, are entitled to retain that possession against every one but the'rightful owner' and they contend that the plaintiffs are not such 'rightful owners.' Reliance is placed upon the case of Asher v. Whitlock (1865) L.R., 1, Q.B., 1 and the rule of law therein laid down that possession is good title against all but the true owner.
7. The learned vakil for the respondents maintains that the doctrine contained in Asher v. Whitlock, especially as it has been interpreted in Gobind Prasad v. Mohan Lal (1901) I.L.R., 24 All., 157. Narayana Row v. Dharmachar (1902) I.L.R., 26 Mad., 514, Pahlwan Singh v. Ram Bharose (1904) I.L.R., 27 All., 169, Sundar v. Parbati (1889) I.L.R., 12. All., 51 and Ismail Ariff v. Mohamed Ghous (1893) I.L.R., 30 Calc., 834, is entirely in favour of his clients.
8. The point raised is by no means an easy one to decide, but after very careful consideration I have come to the conclusion that in the case now under consideration the possession of the appellants should prevail. The case before me differs, as I shall presently show, from all the cases cited by the respondents which I consider in this point, and it is a point fatal to the respondents' claim, that in all these cases the person claiming to be rightful owner showed that he, or the person from whom he derived title, was in possession at the time when the trespasser entered upon possession.
9. In Asher v. Whitlock Mary Ann Williamson from whom Asher derived title was in possession till February 1863. Whitlock, the trespasser, entered upon the property in April 1861. In Govind Prasad v. Mohan Lal, Balkishan, from whom Govind Prasad derived title, was in possession up to the 6th September 1895 and the trespasser through Musammat Gaura entered into possession immediately upon the 6th September 1895. This case may, however, be left out of consideration, for Govind Prasad really succeeded upon good and valid title as next heir to the original rightful owner of the property, and the question which arises in this case did not as a matter of fact arise in that case.
10. In Narayana Row v. Dharmachar (1902) I.L.R., 26 Mad., 514, Dharmachar through Jayachar was in possession up to 1898, and the trespasser entered into possession some time in 1897, either himself or through the lessees whose lease expired in 1897.
11. In Pahlwan Singh v. Ram Bharose (1904) I.L.R., 27 All., 169, Rajkunwar from whom Ram Bharose derived title was in possession up to 6th June 1902, when she let Pahlwan Singh and Rodhan, the trespassers, into possession. In Sundar v. Parbati (1889) I.L.R., 12 All., 51, Sundar was throughout in possession up to and after she brought her suit. In Ismail Ariff v. Mohamed Ghose (1893) I.L.R., 20 Calc., 834, Ismail Ariff was in possession up to and after he brought his suit.
12. In all these cases then the plaintiffs who based their title upon possessory titles could show possession up to, if not after, the moment when trespass was committed by the persons against whom they sought to maintain their title.
13. In the present case, while it cannot be questioned that Bisharat Ali had such possession as conferred an interest which was capable of being inherited by his daughters, the present appellants, it has not been shown that that right to possession ever matured into possession, and consequently it has not been shown that when Kasim Ali entered as a trespasser the ladies were in possession either directly or indirectly.
14. It must not be overlooked that nowhere in the plaint do the appellants state that Kasim Ali held on their behalf or as trustees for them. This idea was apparently suggested by the issues which were struck by the Court of first instance. The judgment of the lower appellate Court on this point runs as follows:
The question as to whether the plaintiffs received profits from their brothers need hardly be considered. The evidence that they did is doubtful, and I find that they have not proved such receipts. But they are entitled claim as the. heirs of Bisharat.
15. This shows that the position, if ever taken up in sober earnest, was never established. The appellants, according to the learned Judge, succeed only on the bare title that they are the heirs of Bisharat Ali and have acquired his right as in possession to maintain that possession as against all but the rightful owner.
16. This being the case, and that right to possession never having ripened into possession for a single moment, can they maintain an action of ejectment? For they are out of possession, and before they succeed they must, as they realize in their plaint, eject the respondents.
17. In Hodson v. Walker (1872) L.E., 7 Exch., 55 that eminent lawyer Baron Martin observed in an action for ejectment that 'it is common learning that to maintain trespass to real property the plaintiff must have been in possession at the time the trespass was committed. The gist of the action is the injury to the possession, and the plaintiffs having the title will not enable him to maintain trespass: 1 Chitty on Pleading, pp. 149--197: Butcher v. Butcher (1827) 7 B. and C. 899.'
18. In Cole on Ejectment it is pointed out (Ed. 1857, p. 213) that 'if a defendant is shown to be a mere wrongdoer, proof of prior possession and of the wrongful act of the defendant whereby the plaintiff was deprived of possession are sufficient prima facie evidence of title to maintain an action, for ejectment. See also Butcher v. Butcher (1827) 7 B. and C. 899, where Lord Tenterden, C.J., held that 'if he who has the right to land enters and takes possession he may maintain trespass.'
19. All that the appellants prove in this case is that their father was in possession of this land before the respondents, and that they have a right to inherit from him, nothing more. They set up the presumption of possession against the presumption which the respondents put forward--' Possessio contra omnes valet praeter eum cui jus sit possessionis '--and the onus being upon them their case should fail. The right to inherit coupled with their father's possession would not avail against the rightful owners, the heirs of Musammat Wazir Jan, if any came forward and established their title; should it be allowed to prevail against Kasim Ali, who entered upon the land when vacant and has held it for well nigh twelve years? If on the other hand they could go further and prove that while they were in peaceable possession Kasim Ali ejected them, it would be very different. But this they have not done. If Bisharat Ali were alive and had remained I out of possession, as his daughters have done, and had instituted this suit against Kasim Ali; he could not have obtained a decree. Is it not an anomaly that his daughters should obtain that which he could not have obtained?
20. I would therefore decree the appeal, but as I have the misfortune to differ from my learned colleague, and his judgment is for affirming the decree appealed against, that decree must be affirmed.
21. The property which forms the subject matter of this second appeal belonged to one Musammat Wazir Jan, who died on the 18th of December 1889, leaving no direct heirs. Possession of the property was on her death taken by the four nephews of her deceased husband. One of these nephews Bisharat was the father of the plaintiffs respondents Ayesha Begam and Kudrat Begam. Bisharat died on the 7th of August 1890. His share of the property mentioned above was taken possession of by his son Kasim Ali to the exclusion of his (i.e., Kasim's,) sisters, the plaintiffs. The appellants got a decree against Kasim and purchased the property in 1901. The suit out of which this appeal arises' was brought by Bisharat's two daughters against their brother Kasim and the auction purchasers to recover the share of the property which they claim by right of inheritance from their father Bisharat. They obtained a decree from the Court of first 'instance which was affirmed on appeal by the learned District Judge. The defendants, auction purchasers, come here in second appeal. Several grounds are set forth in the memorandum of appeal, but the one ground urged and most ably argued by the learned advocate for the appellants is that, under the circumstances stated, the plaintiffs are not entitled to recover the property as heirs of their father Bisharat. I was much impressed by many of the arguments put forward by the appellants' learned advocate, but in my opinion the appeal cannot succeed, as the case is covered by authority. It has been decided by a Full Bench of this Court in Wali Ahmad Khan v. Ajudhia Kandu, (1891) I.L.R., 13 All., 537 that the provisions of Section 9 of the Specific Relief Act do not debar a person who has been, ousted by a trespasser from immovable property to which he has merely a possessory title from bringing a suit in ejectment on his possessory title after the lapse of six months from the date of his dispossession. In the case of Gobind Prasad v. Mohan Lal. (1901) I.L.R., 24 All., 157 it was held by the learned Chief Justice and Burkitt, J., that 'a person in possession of land without title has an interest in the property which is heritable and good against all the world except the true owner, an interest which, unless and until the true owner interferes, is capable of being disposed of by deed or will, or by execution sale, just in the same way as it could be dealt with if the title were unimpeachable.' In the case just cited reliance is placed on the case of Asher and wife v. Whitlock (1865) L.R., 1 Q.B., 1, which decision clearly supports the view taken by this Court in the case just mentioned. In Asher v. Whitlock it was contended in argument that where there are two trespassers the one last in possession is entitled to keep the land until the person having title ejects him, but this argument did not find favour with the Court. As I understood the learned advocate for the appellants, his case was that as the plaintiffs had never themselves been in possession they were not entitled to maintain a suit based on their father's possessory title; but the facts of the case of Asher v. Whitlock are clearly against this proposition, as there a suit by the heir at law of the devisee of a testator who had himself no good title to the land which he bequeathed was successful, the defendant not being able to show title in himself and not having acquired any right by prescription, although the heir at law had never been in possession. I would also refer to the case of Doe d. Pritchard v. Jauncey (1837) 8 C. and P., 99. That was a suit in ejectment tried before Mr. Justice Coleridge and a jury at the Worcester Assizes in 1837. In summing up to the jury the I learned Judge says: 'The father at the time of his death had occupied but seventeen years, and the learned Counsel for the defendant has said that, as the father had not a good title then, from not having possessed twenty years, the property would not descend to his heir, but would go to his executor. That is not so, for the moment the father had taken it, if he died, it would (provided the owner did not interfere) descend to his son.' The case in I.L.R., 24 Allahabad, was followed in Pahlwan Singh v. Ram Bharose (1904) I.L.R., 27 All., 169 and in Babu Ram v. Banke Bihari Lal Weekly Notes, 1906, p. 184. The authorities on this point were considered by the Madras High Court in Narayana Ram v. Dharmachar (1902) 1.L.R., 26 Mad., 514, where it was held that possession under the Indian as under the English law is good title against all but the true owner. There is a paragraph on page 518 of the judgment, the opening words of which, if taken by themselves, would seem to support the appellants' case. But to take those opening words by themselves would be to go against the case of Asher v. Whitlock, and when the paragraph is read as a whole it is clear that it is not in favour of the appellants' case. In the body of that judgment the learned Judges of the Madras High Court say, at page 516: 'In the language of modern English authorities possession is good title against all but the true owner, and a person, in peaceable possession of land has, as against every one but the true owner, an interest capable of being inherited, devised or conveyed.' This in my judgment correctly represents the law as laid down by the authorities. It is apparent from the judgment of Lord Watson in the case of Sundar v. Parbati (1889) I.L.R., 12 All., 51 that their Lordships of the Privy Council approved of the doctrine laid down in Asher v. Whitlock.
22. The case then stands thus. Bisharat, the plaintiffs' father, had a possessory title which on his death passed to his heirs. His daughters, the plaintiffs, were entitled to a share of this property, the whole of which was wrongfully taken possession of by their brother. They have brought their suit within the statutory period of twelve years. They have a good case against him to recover possession, and they have an equally good case against the appellants who derive their title through him. This disposes of the only plea urged in appeal, I would for these reasons dismiss this appeal with costs.
23. The order of the Court is that the appeal is dismissed with costs.