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The Maharaja of Vizianagram Vs. Thamman Pande - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All593
AppellantThe Maharaja of Vizianagram
RespondentThamman Pande
Excerpt:
act no. xv of 1877 (indian limitation act), schedule ii, article 144 - limitation--adverse possession--lease--possession derived from a lessee not necessarily adverse as against the lessor. - - if that view is correct this appeal must fail......the plots. the defendant further contended that, if his vendor was not the true owner, a title by adverse possession had been acquired. the munsif dismissed the suit as to two of the plots and passed a decree in favour of the plaintiff for ejectment of the defendant from the remaining six plots. the defendant appealed and the plaintiff filed an objection under section 561 of the code of civil-procedure, the learned subordinate judge dismissed the defendant's appeal, allowed the plaintiff's objection and decreed his claim in full. the courts below found that the plaintiff's vendor was not the owner of the land. but the court of first instance held that the defendant had established a claim to two of the plots by adverse possession of himself and his vendor. the learned subordinate judge,.....
Judgment:

Aikman and Griffin, JJ.

1. This appeal arises out of a suit brought by the plaintiff, who is respondent here, for possession of 8 plots of land, situated in the village of Saheli, which admittedly belongs to the plaintiff. This village was given in lease by the plaintiff to one Girish Chandra. The period of the lease was from 1297 to 1309 Fasli. The present suit was brought within two years of the expiry of the lease to eject the defendant, Thamman Pande, who is appellant here, from 8 plots of land situated in the village. The defendant's case was that he had purchased the plots on the 21st of September 1897 from one Piaj Umar, whom he alleged to be the owner of the plots. The defendant further contended that, if his vendor was not the true owner, a title by adverse possession had been acquired. The Munsif dismissed the suit as to two of the plots and passed a decree in favour of the plaintiff for ejectment of the defendant from the remaining six plots. The defendant appealed and the plaintiff filed an objection under Section 561 of the Code of Civil-Procedure, The learned Subordinate Judge dismissed the defendant's appeal, allowed the plaintiff's objection and decreed his claim in full. The Courts below found that the plaintiff's vendor was not the owner of the land. But the Court of first instance held that the defendant had established a claim to two of the plots by adverse possession of himself and his vendor. The learned Subordinate Judge, following a ruling of the Calcutta High Court--Sharat Sundar Dabia v. Bhobo Pershad Khan Chowdhri (1886) I.L.R., 13 Calc., 101, held that possession daring the term of the lease was not adverse to the zamindar. If that view is correct this appeal must fail. For the appellant reliance is placed on certain other rulings of the Calcutta High Court, namely, Lekhraj Roy v. The Court of Wards on behalf of the Rajah of Durbhangah (1870) 14 W.R., 395, Brindabun Chunder Sircar Chowdhry v. Bhoopal Chunder Biswas (1872) 17 W.R., 377, Prosunnomoyi Dasi v. Kali Das Roy (1881) 9 C.L.R., 347 and Gobinda Nath Shaha Chowdhry v. Surja Kantha Lahiri (1899) I.L.R., 26 Calc., 460. No doubt these rulings support the view contended for by the appellant's learned vakil, but on this question there is a great conflict of authority in the Calcutta High Court. On the other side may be cited in addition to the case relied on by the lower appellate Court the following rulings: Womesh Chunder Goopto v. Raj Narain Roy (1868) 10 W.R., 15, Krishna Gobind Dhur v. Hari Churn Dhur (1882) I.L.R., 9 Calc., 367, Sheo Sohye Roy v. Luchmeshur Singh (1884) I.L.R., 10 Calc., 577 and Gunga Kumar Mitter v. Asutosh Gossami (1896) I.L.R., 23 Calc. 863. Attention may also be called to what was said by Mr. Justice Mark by in the case of Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee (1878) I.L.R. 4 Calc., 327. At page 329 of the judgment that learned Judge said: 'By adverse possession I understand to be meant possession by a person holding the land on his own, behalf of some person other than the true owner, the true owner having a right to immediate possession.' It has been held by this Court--see the case Muhammad Husain v. Mul Chand (1904) I.L.R., 27 All., 395--that possession during the period of a usufructuary mortgage is not adverse to the true owner. We consider the same principle applies to possession during the term, of a lease, when all that the owner is entitled to is the yearly payment of the consideration reserved by the lease. It would be unjust to hold that a lessor, who was regularly in receipt of the rent reserved by the lease for a long term of years, and who therefore had nothing to put him on inquiry, might find at the expiration of the term of his lease that a considerable portion, it may be, of his property had passed out of his hands by a trespasser taking possession of it without his knowledge, 'We are quite unable to appreciate the reasoning of the learned Judges who decided the latest case in the Calcutta High Court, namely, Gobinda Nath Shaha, v. Surja Kantha (1899) I.L.R., 26 Calc., 460. We are of opinion that the decision of the Court below was right and we dismiss this appeal with costs.


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