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Tika Ram and anr. Vs. Shama Charan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All42
AppellantTika Ram and anr.
RespondentShama Charan
Excerpt:
.....applied, and, as there had been no suit by or against musammat pan kunwar in which eaika's adverse possession had been established or raika's adverse claim had been made, article 141 of schedule ii of the indian limitation act, 1877, applied, and limitation commenced to run, not from 1873, but from the death of musammat pan kunwar in 1893, when the succession opened up to the defendants 3, 4 and 5. it was further contended on behalf of the respondent that the finding of the court of first appeal that the possession of eaika became adverse on the death of sewa in 1873, was a bad finding in law, it being alleged that there was no evidence in support of it. in our opinion the law on this point and on article 141 is explained clearly by our brother bobkitt in hanuman prasad singh v...........1880 these ladies partitioned the 12 biswas between them. the court of first instance found that raika's possession was adverse from the first, that is, from the death of jit singh. the court of first appeal found that raika's possession of the 6 biswas did not become adverse until the death of sewa. there was evidence to support the latter finding. after the partition in 1880, raika mortgaged the 6 biswas of which she was in possession to puran lal, who was the father of the defendants in this suit, who are appellants here. puran lal subsequently brought a suit for sale under the transfer of property act on his mortgage, got a decree for sale, and on the 20th of october 1887, at the sale under that decree, purchased the 6 biswas which had bean in the possession of raika. in 1888 raika.....
Judgment:

John Edge, C.J. and Blair, J.

1. In 1869 Jit Singh, who was possessed of a 12-biswa share in the village of Sitaipur, died. He left a son, Sewa, and a widow, Raika. Sewa and Raika obtained mutation of names in the Revenue papers each in respect of six biswas out of the twelve biswas. In 1873 Sewa died and left a widow, Musammat Pan Kunwar. He left no son. Musammat Pan Kunwar got mutation in her favour in the Revenue papers of the six biswas which had been entered in Sewa's name. Disputes began between Pan Kunwar and Raika after Sewa's death. They commenced to live separately. Each collected in respect of an 8-anna share of the 16 annas of the original 12 biswas, and in 1880 these ladies partitioned the 12 biswas between them. The Court of First Instance found that Raika's possession was adverse from the first, that is, from the death of Jit Singh. The Court of first appeal found that Raika's possession of the 6 biswas did not become adverse until the death of Sewa. There was evidence to support the latter finding. After the partition in 1880, Raika mortgaged the 6 biswas of which she was in possession to Puran Lal, who was the father of the defendants in this suit, who are appellants here. Puran Lal subsequently brought a suit for sale under the Transfer of Property Act on his mortgage, got a decree for sale, and on the 20th of October 1887, at the sale under that decree, purchased the 6 biswas which had bean in the possession of Raika. In 1888 Raika died. On the 22nd of December 1893 Musammat Pan Kunwar died. After her death the defendants 3, 4 and 5 in this suit, who were reversioners of Sawa, sold all their rights, whatever they were, in the 12 biswas, to the plaintiff. In December 1895 the plaintiff brought his suit against the representatives of Puran Lal to obtain possession of the 6 biswas which had been held by Musammat Raika. The suit was dismissed in the first Court on the finding that Raika had had adverse possession since 1869. The Court of first appeal, holding that her adverse possession did not commence until 1873, and applying the Full Bench ruling of this Court in Ram Kali v. Kedarnath I.L.R. 14 All. 156, set aside the decision of the first Court and made an order of remand under Section 562 of the Code of Civil Procedure. From that order this appeal has been brought by the defendants-appellants.

2. Their contention is that the decision of their Lordships of the Privy Council in Mussummat Lachhan Kunwar v. Anant Singh L.R. 22 I.A. 25 : S.C. I.L.R. 22 Cal. 445, s.v. Lachhan Kunwar v. Manorath Ram impliedly overruled the decision in Ram Kali v. Kedamath I.L.R. 14 All. 156, and that on the finding of Raika's possession being adverse from the death of Sewa in 1873, the Court of first appeal was bound to dismiss the appeal to that Court and affirm the decree of the first Court dismissing the suit, and had no power to make an order of remand.

3. On the other hand, it is contended for the respondents that their Lordships of the Privy Council in the case to which we have referred did not overrule the Full Bench decision of this Court in Ram Kali v. Kedamath I.L.R. 14 All. 156; that that decision applied, and, as there had been no suit by or against Musammat Pan Kunwar in which Eaika's adverse possession had been established or Raika's adverse claim had been made, article 141 of schedule II of the Indian Limitation Act, 1877, applied, and limitation commenced to run, not from 1873, but from the death of Musammat Pan Kunwar in 1893, when the succession opened up to the defendants 3, 4 and 5. It was further contended on behalf of the respondent that the finding of the Court of first appeal that the possession of Eaika became adverse on the death of Sewa in 1873, was a bad finding in law, it being alleged that there was no evidence in support of it.

4. This is an appeal from an order of remand made by a Court of first appeal. The findings of fact of that Court of first appeal are therefore in our opinion binding on us, unless they are contrary to law, if partly of law and partly of fact, or unless there was no evidence to support them. We agree with the decision in Gauri Shankar v. Karima Bibi I.L.R. 15 All. 413. This question of the legality of the order of remand could be raised, as it was here, by an appeal under Section 588 of the Code of Civil Procedure. It was open, according to the rulings of this Court, the propriety of which we need not discuss, as they are binding on us, to these appellants to have refrained from bringing an appeal against the order and to have raised the question of the legality or propriety of that order in an appeal against the decree which might ultimately be made by the Court of first appeal. That is the construction which has been put by this Court upon Section 591 of Act No. XIV of 1882. In second appeal we are bound by the findings of fact of the Court of first appeal. We cannot question them, unless they are based upon a misconception of the law or have no evidence to support them. It would be an anomaly if, in an appeal from an order in the same suit of the Court of first appeal, we could do that which we could not do in an appeal from a decree of the Court in that suit, namely, question the findings of fact of the Court of first appeal, except upon one of the grounds to which we have alluded. We find that there is evidence on the record which shows that, at least from the death of Sewa in 1873, Musammat Raika took up an independent position and claimed the profits of the 6-biswa share entered in her name and obtained them for her own use. As the widow of Jit Singh, she had absolutely no title to the 6-hiswa share or any part of it. Her only interest, so to speak, during the lifetime of her son, and on his death during the lifetime of his widow, was a right to be maintained. Consequently, it not having been found, and there being no evidence, that she was allowed possession for maintenance, the Court below rightly found that, at least from 1873, Raika's possession was adverse. In truth, the plaintiff had not set up that Eaika had permissive possession, possession by courtesy, or possession in lieu of maintenance. The plaintiff came into Court on the simple case, which was entirely disproved, that Baika never was in possession at all.

5. Now, on the findings of the Court of first appeal, if the Full Bench decision in Ram Kali v. Kedarnath was right, the order of the lower Court was right. If that decision has been impliedly overruled by the decision of the Privy Council to which we have referred, the defendants were entitled to move the Court of first appeal to dismiss the appeal to that Court. The Full Bench decision in Ram Kali v. Kedarnath was based on a Full Bench decision of the Calcutta Court in Srinath Kur v. Prosunno Kumar GhoshI.L.R. 9 Cal. 934. It appears to us that their Lordships of the Privy Council in the case of Lachhan Kunwar v. Anant Singh, to which we have referred, have impliedly overruled the Full Bench decision of this Court, and that Article 141* of the second schedule to Act No. XV of 1877 does not apply where a trespasser has held, as against the widow of a sonless and separated Hindu, adverse possession, and that adverse possession must in such a case be counted, for the purposes of limitation, from the time when such trespasser or other person first began to hold adversely to the widow. In our opinion the law on this point and on Article 141 is explained clearly by our brother Bobkitt in Hanuman Prasad Singh v. Bhngauti Prasad I.L.R. 19 All. 357. We allow this appeal with costs, and, setting aside the order under appeal, we dismiss the appeal to the Court of first appeal with costs, and restore and affirm the decree of the first Court dismissing the suit with costs.

*[Article No. 141:--

Description of suit. Period of Time from which period begins to run.

limitation

Like suit by a Hindu or Muham- Twelve years... When the female dies.

madan entitled to the possession of

immoveable property on the death

of a Hindu or Muhammadan female.


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