1. This appeal arises out of a suit for partition and possession instituted by the plaintiff-respondent, Mt. Gomti. The appellant Nannhey Khan was defendant 5 in the suit. We are concerned with one item of property only in this appeal. It belonged originally to one Abdul Razzak and through the process of inheritance Qaviul Islam, defendant 4, became entitled to 35 sehams out of 96 sehams in this property. These 35 sehams were acquired by the plaintiff-respondent, Mt. Gomti on 15th September 1925. At the time of the suit the disputed property was in actual physical possession of the appellant Nannhey Khan. Mt. Gomti, therefore, impleaded Nannhey Khan also as a defendant to the suit along with other descendants of Abdul Razzak who had inherited the remaining 61 sehams. There was a triangular contest in the suit in this way that the plaintiff asserted that defendants 1 to 3, namely, Habibul Razzak, Hifzul Ruzzak and Moinul Islam, were in possession over the disputed property as co-sharers and that Nannhey Khan was in occupation of the property as a tenant of these three persons. Defendants 1 to 3, on the other hand, pleaded that they were in adverse proprietary possession against the vendor of the plaintiff. Appellant Nannhey Khan pleaded possession adverse to all of them and asserted his ownership on the basis of adverse possession extending to over 12 years. The case which has lasted now for more than 10 years, has a chequered history. It was dismissed by the Munsif on 31st March 1939. An appeal against the decree was dismissed on 27th November 1946. On a second appeal to this Court the case was remanded under Order 41, Rule 23, Civil P.C., for a re-hearing of the appeal. As a consequence of the re-hearing, the lower appellate Court reversed the decree of the trial Court or 23rd February 19J3, and decreed the plain-tiff's suit with regard to the property in dispute now. This appeal has been filed by defendant Nannhey Khan against the decree of the lower appellate Court passed on a re-hearing on 23rd February 1943.
2. Nannhey Khan again asserted his title by adverse possession in this appeal and it was contended on his behalf that the finding of the lower appellate Court on the question of adverse possession was vitiated by errors of law. By its order dated 30th August 1946, this Court remitted the following two issues to the lower appellate Court for findings:
(1) (a) Did the possession of Nannhey Khan amount to adverse possession? or (b) was it merely permissive?
(2) Was he in such possession for twelve years?
The lower appellate Court has now found that the appellant had been in possession of the disputed property for over 50 years and that his possession was permissive. This finding has been attacked by the learned Counsel for the appellant by means of objections filed under Order 41,R. 26, Civil P.C.
3. A preliminary objection has been raised by the learned Counsel for the appellant to the effect that the issues having been remitted by Hon'ble Sinha J., I have no jurisdiction to hear this appeal. The objection is based upon Rule 5 of chap. 6, High Court Rules, which runs as follow;;;
A case which is part-heard shall, unless it be other-wise ordered by a Judge or Judges, be placed first after miscellaneous cases in the Day's List on the day when the Judge or Judges who hag or have partly heard such case next sits or sit for the disposal of that class of business. Every part-heard case entered in the Day's list shall, unless the Bench otherwise orders, be proceeded with whether an advocate or attorney in the case is present or not.
4. It is contended on the basis of this rule that the hearing of a part-heard case can be continued only before a Judge or a Bench of Judges who had first heard it and not before any other Judge of this Court. In order to interpret Rule 5, it is necessary to refer to Rule 4 also, which immediately precedes it. Rule 4 provides:
The Deputy Registrar or Assistant Registrar shall, subject to any order of the Chief Justice, prepare or on use to be prepared for each Bench, for each day on which the Bench sits, a list of cases which may be heard by such Bench on such day. Such list is in these rules referred to as the Day's List and shall state the hour for the sitting of the Bench....
5. It appears to me that Rule 5 is subject to Rule 4 according to which the allotment of work is to be made by the Hon'ble the Chief Justice of the Court. The List is to be prepared by the Deputy Registrar or the Assistant Registrar. The preparation of the list is subject to the orders of the Chief Justice. Rule 5 only contains a direction that, while the Deputy Registrar or the Assistant Registrar is preparing a list, he Khali list a part-heard case on a particular flay and at a particular place in the Cause List. The preparation of the List itself being subject to the orders of the Chief Justice the placing of a case by the Deputy Registrar or the Assistant Registrar at a particular place and on a particular date in that List must necessarily be subject to the orders of the Chief Justice. It may be noticed that Rule 5 does not, in express terms, provide before which Judge or which Judges a case shall be listed. It only provides for the day on which and the place in the List at which the case shall be listed. The preparation of List is provided for in Rule 4 and not in Rule 5 and according to that Rule the preparation of List is subject to the unfettered orders of the Chief Justice. Rule 4 and not Rule 5 provides for the (allotment of work between various Judges and this allotment is subject to the orders of the Chief Justice. According to well-known principles the authority which allots work may also withdraw that work. There is no prohibition to be found in these Rules that a case once allotted to a Judge cannot be withdrawn from him. The only authority conferred upon a Judge or Judges who had or have heard the case in part is that he or they may issue directions for the listing of that case on any particular day or at any particular place on the Cause List differently from what has been provided for in these rules. I am therefore of the opinion that there is no force in the preliminary objection raised by the learned Counsel and shall now proceed to deal with the merits of the appeal.
6. The contention of the learned Counsel for the appellant is that the facts found by the lower appellate Court do not justify an inference in law that the possession of the appellant was permissive. At first the plaintiff came forward with the case that Nannhey Khan was in possession of the land as a tenant of defendants 1 to 3. She then changed her case and asserted that the Tal which was kept on that piece of land belonged to Fazlul Razzak, father of defendants l to 3 and that the appellant worked in that Tal as a servant of Fazlul Razzak, implying by this assertion that it was Fazlul Razzak who was m actual physical possession of the land and that the appellant Nannhey Khan was not in actual physical possession of the land at all, She led evidence to support these allegations. During the course of the arguments before the lower appellate Court, it was also contended on her behalf that even if these two allegations be not found to be proved it should be inferred that the appellant was in permissive possession. It is worth noticing that it was never specified on her behalf that if the appellant was not in permissive possession in the manners already alleged by her, in what way and at what time that permission had been granted to the defendant. The lower appellate Court has found : (1) that the plaintiff has failed to prove that Nannhey Khan was rent-paying tenant of the disputed land and that she had further failed to establish satisfactorily that Nannhey Khan was occupying the land as servant of Fazlul Razzak; (2) that Nannhey Khan was in possession of the land for over 50 years and that he had been carrying on his own Tal business and dari weaving on the land during this period; (3) that Fazlul Razzak had no concern with the Tal that was kept by Nannhey Khan on the land. Having recorded these three findings, the learned Judge has proceeded to observe that the relations between Fazlul Rahman, father of defendants l to 3, and Nannhey Khan were cordial and intimate, that Abdul Razzak was a vakil, that Fazlul Razzak was not an illiterate villager but was employed in the Co-operative Department, that Fazlul Razzak and his descendants had been transferring this property by way of security from time to time and that one Lekhraj, a Patwari of Budaun, and a clever money-lender had taken security of this property at one time from these persons. On the facts contained in these observations, the learned Judge has reached the conclusion in the following words:
If I find that Nannhey Khan must be in possession of the land under some sort of permission, he might be paying some rent or he might be occupying it in lieu of services that Nannhey Khan might be called upon to render to the family from time to time. I, therefore, hold that possession of Nannhey Khan was not adverse, that it was under some sort of permission express or implied and that he was in such possession for more than 40 years prior to suit.
7. The learned Judge, having arrived at the conclusion that the appellant had been in possession of this of this land for over 50 years by keeping his own Tal, the presumption of law that possession is to be presumed to be adverse, unless proved otherwise, became applicable to this case, The facts mentioned by him do not go to prove that the possession of the appellant was permissive. They do not go beyond that limit of the suggestion that that possession might have been permissive. Indeed, the learned Judge of the lower appellate Court himself does not record a definite finding that the possession of Nannhey Khan was permissive. All that he says is that Nanhey Khan 'must be in possession of the land under some sort of permission.' The facts mentioned by the learned Judge are equally consistent with Nannhey Khan's possession being permissive or adverse. It may be that on account of the cordial relations between Nannhey Khan and Fazlul Razzak the appellant was permitted to occupy the land to carry on his Tal business but it may equally be that on account of that cordial relationship Fazlul Razzak had abandoned his ownership in favour of Nannhey Khan. There is nothing to indicate that Nannhey Khan never knew that the disputed land had been offered in security by Fazlul Razzak. It may also be that having been obliged to Fazlul Razzak, Nannhey Khan did not raise any objection to this temporary transfer. Be that as it may, the earliest document by which the property was hypothecated is of the year 1916. By that time Nannhey Khan would have matured his title by adverse possession, if originally the ownership of the property bad been abandoned in favour of Nannhey Khan. The fact that Fazlul Razzak or his father did not raise any objection to the possession of the land by the appellant is again consistent with either hypo-thesis. The aforesaid facts mentioned by the learned Judge of the lower appellate Court are equally consistent with either hypothesis. The learned Counsel for the appellant is justified in relying upon the presumption of law and in urging that that presumption cannot be rebutted by equivocal facts. I am, therefore, of the opinion that the facts relied upon by the lower appellate Court do not constitute legally sufficient evidence to prove that the appellant's possession was permissive and that his possession, extending to over 50 years ostensibly on his own behalf, should be presumed to be adverse. I have, accordingly, come to the conclusion that the appellant has acquired title by adverse possession, On this finding the plaintiff's suit for possession of this piece of land fails.
8. The appeal is accordingly allowed, the decree of the lower appellate Court is set aside and the decree of the Court of first instance is restored with costs in all the Courts.