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Ram Phal Singh and ors. Vs. Bachchu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All410
AppellantRam Phal Singh and ors.
RespondentBachchu Ram and anr.
Excerpt:
.....by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it is not clear whether it is perfect or imperfect; over and above such right, they have, in common with other co-sharers, a right to enjoy the land in dispute in proportion to their share. the evidence leaves no doubt that they used this land for certain purposes for well over 20 years before they became co-sharers. a 'riyaya' cannot therefore acquire any right of ownership by more than 12 years user of such land, except under circumstances which clearly indicate his exclusive possession amounting to ouster of the landlord......and damages are also claimed. the plaintiffs were originally tenants in the village in which the land in dispute is situate. they appear to have had cultivation at a fairly large scale. the defendants are non-resident zamindars of part of the village. about' ten years before the institution of the suit, the plaintiffs purchased a small share in mahal' bhawani baksh singh, which is one of the three mahals into which the whole village is divided. the defendants have also a small share in mahal bhawani bakhsh singh, besides being the owners of the remaining two mahals, namely, mahal khet singh and mahal phaldan singh. the plaintiffs do not appear to have ever been the tenants of the defendants. they held a small area as subtenants from one of the defendants, tenants. this sub-tenancy came.....
Judgment:

Niamatullah, J.

1. This is a defendants' appeal arising out of a suit brought by the plaintiff-respondents for recovery of possession of a piece of land shown in red and marked A in a plan accompanying the plaint. The reliefs of injunction and damages are also claimed. The plaintiffs were originally tenants in the village in which the land in dispute is situate. They appear to have had cultivation at a fairly large scale. The defendants are non-resident zamindars of part of the village. About' ten years before the institution of the suit, the plaintiffs purchased a small share in mahal' Bhawani Baksh Singh, which is one of the three mahals into which the whole village is divided. The defendants have also a small share in mahal Bhawani Bakhsh Singh, besides being the owners of the remaining two mahals, namely, mahal Khet Singh and mahal Phaldan Singh. The plaintiffs do not appear to have ever been the tenants of the defendants. They held a small area as subtenants from one of the defendants, tenants. This sub-tenancy came to an end about a year before the institution of the present case. The case, as set out in the plaint, is that the plaintiffs have been in exclusive possession of the land in dispute for a very long time past and they have used it as their threshing floor, as a place for storage of rubbish (ghur), as their courtyard and for certain other purposes. The plaintiffs claim their possession to have been of a proprietary character. What led to the institution of the suit, according to the plaintiffs, was active interference by the defendants in their enjoyment of the land.

2. The defence, to which the defendants eventually settled down, was a denial of the plaintiffs' possession, or enjoyment of any kind, of the land in dispute.

3. No documentary evidence was produced by either of the parties. The witnesses examined by the parties supported the case of continued possession of one party or the other. Both the Courts below have believed the witnesses examined by the plaintiffs, their finding being that the plaintiffs have for a considerably long time used this land as a threshing floor and as land for storage of rubbish (ghur) and cow-dung cakes. The plaintiffs' suit for possession has been decreed on that finding. The defendants have preferred this second appeal.

4. As already mentioned the village has been formed into three 'mahals' by partition. It is not clear whether it is perfect or imperfect; but the entire 'abadi' land is joint, in the sense that actual division and allotment of it has not been made. A certain area out of it has been nominated as appertaining to each 'mahal.' In other respects it has been left joint. It is, therefore, not possible for either of the parties to assert, as regards a particular piece of land, that it is exclusively theirs. The character of the plaintiffs' possession, apart from their right, has been exactly the same during the years that they have been co-sharers in mahal Bhawani Bakhsh Singh as it was before it. Ever since they obtained proprietary interest in a small fractional share, the character of their enjoyment of the land in dispute has not undergone any change. The result is that their right of user, whatever it was before they became co-sharers still subsists. Over and above such right, they have, in common with other co-sharers, a right to enjoy the land in dispute in proportion to their share. Under these circumstances, it becomes necessary to ascertain the extent of the plaintiffs' right to this land before they became co-sharers in the village. Neither of the Courts below has considered it necessary to find the exact position resulting from their enjoyment of the land in dispute for a long time. The evidence leaves no doubt that they used this land for certain purposes for well over 20 years before they became co-sharers. Several possible cases are to be considered to ascertain the character of the plaintiffs' right to this land. They could have perfected a right of ownership by adverse possession, they could have acquired the right of easement or they may have been only licensees. As to which of these rights, if any, has been acquired depends on the nature and extent of their possession. In the first case, the right of the proprietors, whoever they were, including the defendants, should be deemed to have been lost. In the third case, the plaintiffs are entirely at the mercy of the proprietary body, the license being always revocable. On the evidence, with due regard to the circumstances of the case, I am not inclined to hold that the plaintiffs were in adverse possession or that they were licensees.

5. The land in dispute, as I have already said, is part of the abadi and has all along bean parti. An ordinary inhabitant of the village cannot acquire title by adverse possession by merely using part of the parti land belonging to the zamindars. Title by adverse possession, as regards such land, can only be acquired if there was an assertion of title on his part to the knowledge of the owners. Nothing short of actual ouster will set the law of limitation running against the proprietors, who may not object to the residents of the village using parti land without in any way prejudicing their own rights as proprietors. A 'riyaya' cannot therefore acquire any right of ownership by more than 12 years user of such land, except under circumstances which clearly indicate his exclusive possession amounting to ouster of the landlord. Evidence adduced by the plaintiffs, and believed by the Courts below, falls far short of this requirement. I must, therefore, negative the plaintiffs' alleged title by adverse possession. At the same time I am not prepared to hold that they were only licensees. The evidence establishes that the plaintiffs have used the land in dispute, for more than 20 years before they became co-sharers in the village, as their threshing floor and as land for storage of rubbish and cow-dung cakes openly and as of right and without interruption. Their residential house is in close proximity to the land in dispute. They have their cultivation in the village not far from the land in dispute. They must, therefore, use some plot of land for the purposes referred to.S. 15, Easements Act is of wider application and is not confined to rights of way or of support specially mentioned therein. The expression any other easement includes a variety of rights similar to those illustrated in the section. Pasturage, fishery, ferry and similar rights of easements have been frequently upheld as those acquired by prescription, see: for example, Secy, of State v. Mathurabhai [1890] 14 Bom. 213 and Chandee Charn Roy v. Shib Chander Mundal [1880] 5 Cal. 945. It is clear from the evidence that they have acquired a right of prescriptive easement for the purposes already mentioned, and to that extent their right must be conceded by the defendant-appellants. This, however, will not entitle the plaintiffs to a decree for exclusive possession, as has been granted to them by the Courts below. The proprietor of a village is presumed to be in possession of his parti land, an 1 user of part of such land by the riyaya is not necessarily dispossession of the former. His possession, at least constructive, continues in spite of such user. I am, therefore, of opinion that the decrees of the Courts below, in so far as they award exclusive possession to the plaintiffs, cannot be sustained. In so far as the plaintiffs are also co-sharers in the mahal in which part of the land in dispute is situate, their proprietary right as co-sharers to the extent of their share will not be affected and they will be entitled to enjoyment in that capacity with the defendants, who are not exclusive owners of the land in dispute. The exact amount of the plaintiffs' share in mahal Bhawani Bakhsh Singh is not clear and need not be specified for the purpose of this case.

6. Under the circumstances stated above, I set aside the decrees passed by the Courts below and substitute therefor a decree to the following effect:

The plaintiffs are decreed joint possession to the extent of their proprietary interest in the land in suit. The plaintiffs' right of prescriptive easement, entitling them to use the land as their threshing floor, for storage of rubbish (ghur and cow-dung cakes) is declared and an injunction is issued against the defendants directing them to refrain from interfering with the plaintiffs' right of easement detailed above. Under the circumstances of the case, parties are ordered to bear their own costs throughout.


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