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Mohammad Tahir and ors. Vs. Bechey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1936All466; 163Ind.Cas.545
AppellantMohammad Tahir and ors.
RespondentBechey Lal and ors.
Excerpt:
- .....to the possession of their predecessor mt. sakina, and if mt. sakina remained in uninterrupted adverse possession from 15th march 1916, the date of sale, up till 10th november 1929, from which date raghubar dayal's sons are in possession, then the plaintiffs' suit instituted on 20th january 1930 would obviously be barred by time. the argument advanced by mr. mukhtar ahmad on behalf of the plaintiffs-appellants is that by reason of the decree obtained by the plaintiff's in suit no. 259 of 1923 the adverse possession of mt. sakina was broken, and it is also argued that by obtaining symbolical possession in 1931 the plaintiff's have further improved their position. in support of his contention on these two points my attention was drawn to the case of mahadevappa dundappa v. bhima.....
Judgment:

Bajpai, J.

1. This is an appeal by the plaintiffs who are heirs of one Mohammad Yahya. The facts giving rise to the suit and the appeal may be briefly stated. It appears that one Mt. Sakina was the owner of 1 1/4 th biswa share in zamindari property and on 15th March 1916 she sold a 7 biswansi out of that share to one Sarfarazan. On the death of Mt. Sarfarazan, Mohammad Yahya became entitled to this 7 biswansi. In spite of the sale to Mt. Sarfarazan, Mt. Sakina remained in possession and in the year 1923 Mohammad Yahya, heir of Mt. Sarfarazan, had to bring a suit (No. 259 of 1923) for a declaration and injunction against Mt. Sakina in respect of this 7 biswansi share. The suit was decreed on 31st January 1924 and the decree of the trial Court was confirmed in appeal on 28th April 1925. In 1919 Mt. Sakina, in spite of the sale of 1916, mortgaged the entire 1 1/4 th biswa zamindari property to Raghubhar Dayal including the 7 biswansi share already sold to Mt. Sarfarazan. In 1923 she executed a fresh mortgage in lieu of the mortgage of 1919. The sons of Raghubar Dayal then brought a suit on the basis of this mortgage (No. 314 of 1925) and after having obtained a decree purchased the mortgaged property on 10th November 1929 and since then they are in possession of the 1 1/4 th biswa zamindari property.

2. The plaintiffs who are the heirs of Mohammad Yahya brought the present suit on 20th January 1930 against the defendants who are the heirs of Raghubar Dayal praying for a declaration that the plaintiffs were the proprietors of a 7 biswansi share and that the said property was not saleable in execution of decree No. 314 of 1925. During the pendency of this suit the plaintiffs further took the step of obtaining symbolical possession in 1931 in execution of their decree in suit No. 259 of 1923, but it is worthy of note that Raghubar Dayal's sons were not parties to the execution proceedings and the symbolical possession was obtained against Mt. Sakina alone who by this time had lost all interest in the property. Courts below have dismissed the plaintiffs' suit on the ground that it is barred by limitation. It is contended before me that this view of law taken by the Courts below is incorrect, and the possession of the defendants cannot be said to be adverse to the right of the plaintiffs. Raghubar Dayal's sons having purchased the property in execution of a decree against Mt Sakina can undoubtedly tack their own possession to the possession of their predecessor Mt. Sakina, and if Mt. Sakina remained in uninterrupted adverse possession from 15th March 1916, the date of sale, up till 10th November 1929, from which date Raghubar Dayal's sons are in possession, then the plaintiffs' suit instituted on 20th January 1930 would obviously be barred by time. The argument advanced by Mr. Mukhtar Ahmad on behalf of the plaintiffs-appellants is that by reason of the decree obtained by the plaintiff's in suit No. 259 of 1923 the adverse possession of Mt. Sakina was broken, and it is also argued that by obtaining symbolical possession in 1931 the plaintiff's have further improved their position. In support of his contention on these two points my attention was drawn to the case of Mahadevappa Dundappa v. Bhima Doddapa 1922 46 Bom 710. Macleod, C.J., in somewhat similar circumstances, observed:

In my opinion in this case it cannot be said that the question of adverse possession arises in face of the plaintiff's decree of February 1914. That would put a stop to any adverse possession prior to the date of the decree.

3. With great respect I am afraid I cannot agree with this proposition of law. In Singaravelu Mudaliar v. Chokkalinga Mudaliar 1928 46 Mad 525 it was held that a judgment of a Court declaring that a party in possession of immoveable property has no title to it has not the effect of interrupting the continuity of his adverse possession as against the real owner. If he continues in possession for 12 years before suit, his title is perfected. This case was cited in arguments by Mr. DeGruyther on behalf of the respondents before their Lordships of the Privy Council in Subbaiya Pandaran v. Muhammad Mustapha Marcayar 1923 46 Mad 751 and the contention apparently found favour with their Lordships. At p. 755 they observed:

Their Lordships do not think that the decree had that effect. At the moment when it was passed the possession of the purchaser was adverse, and the declaration that the property had been properly made subject to a trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession, it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted, when it was too late.

4. To my mind it is clear that when a person is in adverse possession he is in the wrong and from the date of his possession starts maturing a title, and if a decree is passed against him declaring that his possession is adverse it simply, to use the words of their Lordships of the Privy Council, 'emphasises the fact that the possession is adverse', and if in spite of the decree the person remains in possession, his possession, if anything, becomes still more adverse. There is, therefore, no force in the contention that the decree of 1924 put a stop to the adverse possession of Mt. Sakina. As to the symbolical possession obtained in 1931, even if such symbolical possession was in accordance with law, it cannot in any way help the plaintiffs as that possession was obtained during the pendency of the present suit before which the defendants had already perfected their title. Moreover in the execution proceedings, when symbolical possession was taken, the defendants were not parties and the proceedings were taken only against Mt. Sakina, who, as stated before, had absolutely no interest left in the property. Symbolical possession obtained against her cannot in any way injure the defendants. For the reasons given above, there is no force in this appeal and I dismiss it with costs. Leave to file an appeal by way of Letters Patent is refused.


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