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Mustafa Khan and anr. Vs. Musammat Dulari and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All433; 65Ind.Cas.75
AppellantMustafa Khan and anr.
RespondentMusammat Dulari and ors.
Excerpt:
.....am not much impressed by the judgment of the learned judge, that he did find and intended, to find adverse possession from 1902 by the defendant musammat dulari. 'i am not satisfied that the plaintiffs' rights are not barred by possession of the widow from 1902, and i think that the evidence does show such possession. ' i am satisfied that he meant to find adverse possession as a fact. 836, the well-known ceylon case. well there are co-owners and co-owners and it is possible to press this principle too far. raza ali was forced to admit that in this case if the conduct of the widow had continued till her death and after her death by her descendants for 100 years, and if his clients had come after 100 years, his argument would be precisely the same, that she and her descendants had been..........am not much impressed by the judgment of the learned judge, that he did find and intended, to find adverse possession from 1902 by the defendant musammat dulari. in disposing of the plaintiffs' case as to property a, he has dealt specifically with the evidence of adverse possession. turning from that question to the same question as regards property b, he says: 'i am not satisfied that the plaintiffs' rights are not barred by possession of the widow from 1902, and i think that the evidence does show such possession.' i am satisfied that he meant to find adverse possession as a fact. it is to be borne in mind that he is affirming a finding of the first court, not making an original finding himself, and there are one or two passages in the first court's judgment which have been relied upon.....
Judgment:

Walsh, J.

1. This is a difficult case, although the amount in dispute is trivial, and it is difficult because I have to decide not only whether the finding is one of fast, but whether the finding of fact is one which could lawfully be arrived at under all the circumstances of the case; and my difficulty is not diminished by the very slight assistance which I got from either of the judgments of the lower Courts. The lower Appellate Court has held that the plaintiffs are entitled to succeed as to property A, but that they are barred by limitation as to property B. I am quite satisfied, although I am not much impressed by the judgment of the learned Judge, that he did find and intended, to find adverse possession from 1902 by the defendant Musammat Dulari. In disposing of the plaintiffs' case as to property A, he has dealt specifically with the evidence of adverse possession. Turning from that question to the same question as regards property B, he says: 'I am not satisfied that the plaintiffs' rights are not barred by possession of the widow from 1902, and I think that the evidence does show such possession.' I am satisfied that he meant to find adverse possession as a fact. It is to be borne in mind that he is affirming a finding of the First Court, not making an original finding himself, and there are one or two passages in the First Court's judgment which have been relied upon by Mr. Abu Ali for the respondents, which go very much to support that view. The First Court said: 'that Abdulla died in 1902; that Suleman and Shabadat had died before, and that the plaintiffs' father, Abdulla, both took their property (be obviously meant, took the property of both), and that on the death of Abdulla, defendant No. 1, that is, Dulari, got all the property which was in the possession of Abdulla. Then he goes on to examine the subsequent conduct of the parties and, using rather slovenly language, he points out what the plaintiffs might have proved if they had really been in adverse possession. I think he meant that they were unable to negative the defendants' adverse possession. So that the matter come up to the lower Appellate Court with a finding on this subject which the lower Appellate Court was only concerned to affirm. I notice that there is a cross-objection by the defendants but, in my view, it is a finding of fact as regards A just as much as regards B, and the finding is that the plaintiffs' claim is not barred.

2. The point that has troubled me is the argument of Mr. Razi Ali for the appellants based upon the second ground of appeal, that at the time of the death of Abdulla in 1902, the parties were so owners and near relations and the possession of one co-owner is in law the possession of all the co-owners. I recognise the principle. It has been laid down with great fores in a variety of cases, which I do not intend to examine in detail and which I refer to merely out of respect to the argument addressed to me. There is the case of Ahmad Raza Khan v. Ram Lal 26 Ind. Cas. 922 : 13 A.L.J. 204 : 37 A. 203, following the Privy Council decision in the case of Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836, the well-known Ceylon case. I do not agree that the Privy Council did not base their decision upon the Ordinance. I think they did. But I think that the case is distinguishable from the case before me, the principle being applied there as against a brother who on behalf of himself and his sisters took possession of derelict property. The case that puzzles me most is the case of Ram Parson Upadhia v. Sheikh Kalab Husain 36 Ind. Cas. 100, in which Mr. Justice Rafique uses language which appears to be applicable to almost every case which can arise. The case here, of course, is one of a widow remaining in possession of property which her husband had already occupied partly to the exclusion of the plaintiffs or their father, and under circumstances which did not suggest in any way that she was either doing it for them or on their behalf or in any way other than wrongfully if they chose to assert their rights. Well there are co-owners and co-owners and it is possible to press this principle too far. The co-owner in this case was a mere cousin by marriage as regards the share of two of the deceased men, and a sort of cousin by marriage of the plaintiffs, and I am not prepared to say that there are not cases in which a person owning a share in certain property and usurping more than his share has not really ousted adversely the person entitled to his share, and I am not prepared to say that there are not cases in which consent to such conduct may not be consistent with adverse possession. If a brother of mine takes more than his share on my father's death, and I, not thinking it worthwhile to interfere, consent to his remaining in possession of more than his share, is it to be said that, because I acquiesced, the possession was not adverse? Mr. Raza Ali was forced to admit that in this case if the conduct of the widow had continued till her death and after her death by her descendants for 100 years, and if his clients had come after 100 years, his argument would be precisely the same, that she and her descendants had been holding for and on behalf of their co-sharers. Another point which might differentiate this case from other cases is that in this particular case there has been a strenuous fight over the date of the death, which was immaterial if the plaintiffs' case really was that the possession was not adverse but in trust for or on behalf of their interests. I think the decision here, having regard to all the circumstances of the case, cannot be said to be wrong in law, and being a finding of fact, the appeal must be dismissed with costs.

3. The cross-objection is similarly dismissed with such costs as the law allows.


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