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Champa Lal Vs. Mangal Chand anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All42; 40Ind.Cas.420
AppellantChampa Lal
RespondentMangal Chand anr.
Excerpt:
.....time. we think this fact alone, namely, the quick succession of parties and the continuance of possession in mangal is in itself significant and rather raises the inference that he was allowed to continue after the partition, as he had been before the partition, in possession without interference by the other members of the family, but two things happened in 1903 which in the absence of any explanation to the contrary to our mind raise a very strong presumption. but whether he did or not know precisely of this particular transaction it is to our minds sufficient, if unexplained, to show that at that time mangal was in possession for and on behalf of his uncle jai lal who was looking after the property. the first court set out the law perfectly correctly but it overlooked the fact..........place in 1894 when his father had his share partitioned and the property in question remained the joint property of the other two brothers. so that neither mangal nor his father had any interset in it. nonetheless he was allowed to remain in possession. in 1895 another partition took place and the property in question was then partitioned and given to jai lal. nonetheless mangal remained still in possession. we think this fact alone, namely, the quick succession of parties and the continuance of possession in mangal is in itself significant and rather raises the inference that he was allowed to continue after the partition, as he had been before the partition, in possession without interference by the other members of the family, but two things happened in 1903 which in the absence of.....
Judgment:

1. The first point we have to decide is whether in this case before us there is a question of law. It was decided as such on appeal in Ajmer and was referred to us as such. It is well settled that a question of adverse possession, where the facts are not in dispute and where, therefore, it depends upon inferences to be drawn from admitted facts, may be a conclusion of law. We think that is the condition of things before us. Secondly, it has been urged by Mr. Panna Lal with great force that the onus is on the plaintiff. We agree. A plaintiff has to show title and where it is alleged that he is out of possession, he must show affirmatively that he has been in possession within twelve years of the suit. But possession may be ambiguous. Nothing shows that 'better than the case to which my brother called attention, decided by the Privy Council and reported as Corea v. Appuhamy (1912) A.C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836. In that case there was no dispute about the facts. The only question in the first Court was whether the person in possession had taken possession as heir or as a squatter. The Privy Council held on the facts that he had come into possession in the only capacity he could lawfully come into possession as one of several co-owners, and they held as a matter of law that nothing having happened to change his position, his possession never became adverse. Applying that principle to the facts of this case, so far as they are known, it seems to us that the right conclusion is that Mangal at any rate from and after 1903 was in possession either as tenant or as agent or as licensee of his uncle Jai Lal, and that his possession was, therefore, permissive. At any rate the factsare such as to throw the onus upon the present defendant to satisfy the Court that the possession was adverse. The authorities which Mr. Panna Lal has referred to only deal with the question of onus, which may be shifted by evidence. Such evidence may lead either to a contrary conclusion or leave the facts ambiguous. Neither party here was in a position to prove how Mangal originally came into possession of this upper storey, but it is perfectly clear that when he was in possession he was a member of a joint family and, therefore, as a matter of law he could not be in adverse possession at that time. A partition took place in 1894 when his father had his share partitioned and the property in question remained the joint property of the other two brothers. So that neither Mangal nor his father had any interset in it. Nonetheless he was allowed to remain in possession. In 1895 another partition took place and the property in question was then partitioned and given to Jai Lal. Nonetheless Mangal remained still in possession. We think this fact alone, namely, the quick succession of parties and the continuance of possession in Mangal is in itself significant and rather raises the inference that he was allowed to continue after the partition, as he had been before the partition, in possession without interference by the other members of the family, but two things happened in 1903 which in the absence of any explanation to the contrary to our mind raise a very strong presumption. A certain person Kistur Chand, who was called as witness, took a mortgage of this very property from Jai Lal in 1903 as he said. He knew the relationship of the parties and as we read his evidence he went out of his way, knowing that Mangal was in possession and that Jai Lal was purporting to deal with the property, to take what he called a rent-note from Jai Lal because he said he was Mangal's uncle. It seems to us not improbable, that Mangal knew all about this transaction and of course if he did, it was an arrangement to which he was a party and which is wholly inconsistent with his present contention; but whether he did or not know precisely of this particular transaction it is to our minds sufficient, if unexplained, to show that at that time Mangal was in possession for and on behalf of his uncle Jai Lal who was looking after the property. The other point is that Jai Lal did not live there but lived far away while Mangal had always done so, and nothing is more natural in a joint family of this kind than that the uncle should allow the nephew to continue as he had done while the property was still joint. It is not suggested that since 1903 Mangal has done anything at all to show what is called adverse possession. We hold taking all these circumstances together that they are sufficient to justify the conclusion that Mangal was in possession, first, as a memeber of the joint family and after partition, for and on behalf of Jai Lal and not independently of him. The first Court set out the law perfectly correctly but it overlooked the fact that the expression adopted in the judgment from the authority which was being quoted, namely, 'the character of an agent', applied to the facts...of this particular case. The Additional District Judge held that there was nothing on the record to show that the possession was permissive. That is where we differ from him, we think there is just enough and it is to be observed that the presumption as against Chatar Bhuj who sold this property, that the possession was always premissive, is in his case the only possible presumption consistent with his being an honest man. We do not think it well to answer the question in the precise terms of the reference, as it is submitted somewhat in the. abstract. We do not hold that when the parties are cousins the presumption of permission always arises, but we hold that on the facts of this particular case, there being nothing to show that respondent No. 1 ever exerted his possession adversely, the possession as a matter of inference justified by the evidence, was with the permission first of the joint family and subsequently with the permission of Jai Lai. The question is, therefore, answered in favour of the purchaser. We think, therefore, that the appeal to the Court, from which the reference was made, should be allowed with costs, which under Section 20 of Regulation No. 1 of 1877 will include the costs of this reference. We think the costs certified are reasonable.


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