Skip to content


Kallan and ors. Vs. Mohammad Nabi Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All775
AppellantKallan and ors.
RespondentMohammad Nabi Khan and ors.
Cases Referred and Prabhu Narain Singh v. Pt. Bhagwan Das Second Appeal No
Excerpt:
.....of his suit, and that therefore the plaintiff's suit for possession was barred by the limitation act. accordingly when the holder of title proves, as in their lordships' view he does with some fullness prove in the present case that he too has been exercising during the currency of his title various acts of possession, then the quality of these acts, even although they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds. girwar singh air 1919 all 403, this principle has also been followed and it has been definitely held that the correct article to apply in case like the..........is plaintiff the owner of the house in suit? (2) have defendants acquired any right to it by adverse possession. (3) to what sum, if any, is plaintiff entitled as mesne profit? (4) is plaintiff or his predecessor-in-interest in possession within 12 years, and if not, is the suit barred by time?2. the court of first instance dismissed the suit of the plaintiff on the ground that the plaintiff had to prove that he was in possession within 12 years before the institution of the suit and that plaintiff had failed to prove this. it was also found by this court:to me it appears that ahmadi begam finding that she had lost her claim to the house by being kept out of possession for over 12 years sold the house to plaintiff with a view that plaintiff might try his chance by a law suit.3. the.....
Judgment:

Bennet. J.

1. This is a second appeal by defendants 1, 3, and 4 against a decree of the lower appellate Court granting the plaintiff possession of a certain house. The suit of the plaintiff was brought on 31st July 1929 on a sale-deed dated 23rd May 1929, by defendant 2, Mst. Ahmadi Begam, of the house in question along with other property to the plaintiff. The plaint set forth that defendant 1, Kallan, was a tenant of the vendor Mst. Ahmadi Begam paying rent to her and liable to be ejected at any time. The plaintiff issued a notice on 6th June 1929 to defendant 1 to vacate the house and defendant 1 sent a reply denying that he was a tenant and alleging that he was the owner. The written statement' of defendant 1 was that he was the absolute owner of the house and had been in adverse proprietary possession for more than 17 years and that Mst. Ahmadi Begam had never been in possession and had never been the owner of the house. Subsequently, theparties made statements under Order 10, Rule 1 and Kalian slated that he did not know who was the owner of the house, that his father-in-law Hamid Ullah used to reside in the house and had no issue and died 20 or 22 years ago. The statement that the father-in-law had no issue apparently means that the father-in-Iaw had no issue other than the wife Kalian. Accordingly amendments of the plaint were allowed on 30th January 1930 and 7th February 1930 and Mst. Shahzadi the daughter of Hamid Ullah and wife of Kalian, was added as defendant 5 and their two sons as defendants 3 and 4. The Court of first instance framed issues as follows:

(1) Is plaintiff the owner of the house in suit? (2) Have defendants acquired any right to it by adverse possession. (3) To what sum, if any, is plaintiff entitled as mesne profit? (4) Is plaintiff or his predecessor-in-interest in possession within 12 years, and if not, is the suit barred by time?

2. The Court of first instance dismissed the suit of the plaintiff on the ground that the plaintiff had to prove that he was in possession within 12 years before the institution of the suit and that plaintiff had failed to prove this. It was also found by this Court:

To me it appears that Ahmadi Begam finding that she had lost her claim to the house by being kept out of possession for over 12 years sold the house to plaintiff with a view that plaintiff might try his chance by a law suit.

3. The plaintiff appealed and the lower appellate Court has decreed the suit. The lower appellate Court held following a ruling in Kanhaiya Lal v. Girwar : AIR1929All753 , that Article 144 applied to this suit as the plaintiff sues for possession of an immovable property on the basis of his title and in such a suit if the plaintiff proves his title, he is entitled to a decree, unless the defendant succeeds in establishing his adverse possession for a period of more than 12 years and that Article 142 is restricted to cases in which the relief for possession sought by the plaintiff is based on what may be styled as possessory title; and the burden of proving in such cases that the plaintiff was in possession and was dispossessed within 12 years from the date of the suit lies on the plaintiff.

4. In second appeal the correctness of this doctrine of law has been challenged and also it has been shown that the finding of the lower appellate Court in regard to title is not supported by evidence and further that there is no definite finding in regard to the period of possession by the defendants and whether the defendants have done acts which assert adverse possession. We will first look to the points in regard to proof of title and the findings in regard to possession and then we will deal with the law which should be applied by the lower Court to this case. The lower appellate Court based its finding in regard to title on the sale-deed of 23rd May 1929 executed just before the suit was brought and on a reference to earlier sale-deeds in that sale-deed and on an alleged admission by Mt. Shahzadi, defendant 5. The earlier sale-deeds were not produced and the mere execution of a sale-deed by Mt. Ahmadi Begam is no proof that she had any right to execute a saledeed. The statement in the evidence of Mt. Shahzadi is as follows: 'Hamid Ullah might have got this house from Ahmadi Begam.' This expression does not amount to any admission that Hamid Ullah did get this house from Mt, Ahmadi Begam. Nothing therefore can be based on such a vague statement by a witness. Nothing else has been shown on the record on which a finding of title could be based. We note that the lower Court alluded to the fact that the Court of first instance had refused to allow an old document to be filed and that the lower appellate Court was considering the propriety of remanding the case for further evidence on the question of title. We consider therefore that in the present case it is necessary to remand this case for a finding on issue No. 1, 'Is the plaintiff owner of the house in suit?' On this issue it will be open to the parties to produce further evidence.

5. Now if the plaintiff succeeds in proving his title, we consider that the article of limitation to apply will be Article 144 and accordingly there should be a clear finding on issue No. 2. 'Have defendants acquired any right to the house by adverse possession?' The finding of the lower appellate Court is that the defendants have failed to prove that they have acquired any right to the house in dispute by adverse pos- session. But in discussing the evidence of witnesses who stated that the defendants had been in possession for more than 12 years the lower appellate Court has not come to a finding as to whether defendants have or have not been in possession for more than 12 years. It is necessary that there should be a clear finding on this point. Further, if the lower appellate Court finds that defendants have been in possession for more than 12 years, it is necessary that the lower appellate Court should come to a finding as to whether that possession has been adverse to the plaintiff and the predecessor of the plain tiff or not. That is, it is necessary for the Court to find whether the defendants have asserted their title as owners of the house.

6. We now turn to the question of law on the subject and learned Counsel for the appellants has challenged the correctness of the law laid down in Kanhaiya Lal v. Girwar : AIR1929All753 . The legal argument of counsel for the appellants was that it is not correct to say that where plaintiff proves his title, he is entitled to the benefit of Article 144 but that in this case also plaintiff should come under Article 142, that the view of law laid down in the ruling in question is incorrect because a suit brought by a person who is dispossessed without his consent from an immovable property other than in due course of law can only come under Section 9, Specific Relief Act, and the period for such a suit is limited under Article 3, Limitation Act, to six months from the date of dispossession. He therefore argues that suits for possession on a possessory title are limited to six months by Article 3 and they cannot be the only class of suits which come under Article 142. Otherwise the period of 12 years would be in conflict with period of six months laid down by Art,. 3. No direct authority was shown to us for the proposition of law advanced by the learned Counsel for the appellants. It is true that a majority of the Patna High Court in the Full Bench ruling in Raja Shiva Prasad Singh v. Hira Singh AIR 1921 Pat 237, held that in a suit for ejectment the plaintiff must not only prove his title but also that he has been in possession within 12 years from the date of the institution of the suit. The view of law contained in Kanhaiya Lal v. Girwar : AIR1929All753 is a view which has been expressed in a number of rulings in this Court, and it is founded on the ruling off their Lordships of the Privy Council contained in Secy. of State v. Chellikani Rama Rao AIR 1916 PC 21 of the year 1916 where it was held at p. 632 (of 39 Mad.) that the proper article to apply'' was 144. We will also refer to A.I.R. 1928 P.C. 146, Kamakhya Narain Singh v. Ram Raksha Singh, at p. 149, where their Lordships state as follows:

In fact, the evidence shows that the then-proprietor of the Raj refused to recognize the defendant's predecessors as his tenants. In these circumstances their Lordships are of opinion that the plaintiff failed to prove that the relationship of landlord and tenant, on which he relied, was in existence within 12 years prior to the institution of his suit, and that therefore the plaintiff's suit for possession was barred by the Limitation Act.

7. In this passage their Lordships are apparently applying the principle of Article 144 and not of Article 142. In Mohammad Ishaq v. Zindi Begam (1931) 134 IC 461 the following passage occurs in the judgment of a Bench of this Court:

The plaintiffs' title was proved and if the title was with the plaintiffs they were entitled to succeed unless the defendant proved that that title had been lost on account of adverse possession on the part of the defendant.

8. In Kuthali Moothavar v. Peringati AIR 1922 PC 181 at p. 890 (of 44 Mad.) their Lordships have laid down as follows: in 1921:

Standing a title in 'A', the alleged adverse-possession of 'B', must have all the qualities of adequacy, continuity and exclusiveness which should qualify such adverse possession. But the onus of establishing these things is upon the adverse possessor. Accordingly when the holder of title proves, as in their Lordships' view he does with some fullness prove in the present case that he too has been exercising during the currency of his title various acts of possession, then the quality of these acts, even although they might have failed to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from any person challenging by possession the title which he holds.

9. In Jai Chand Bahadur v. Girwar Singh AIR 1919 All 403, this principle has also been followed and it has been definitely held that the correct Article to apply in case like the present is Article 144 and not Article 142. There are also a number of unreported rulings of this Court in which this principle has been followed, e.g., Mohammad Habibul Rahman Khan v. Babu Sant Lal Second Appeal No. 760 of 1929, Decided on 24th June 1931. and Prabhu Narain Singh v. Pt. Bhagwan Das Second Appeal No 151 of 1929. Against the numerous rulings of this Court, none to the contrary have been shown for the appellant. We therefore consider that there is no reason why we should depart from what has been the established practice of this Court in this matter.

10. We may mention that the present plaint does not allege that the plaintiff while in possession was dispossessed. On the contrary, the present plaint sets up a title in the plaintiff and alleges that only shortly before the plaint defendant 1, who was in possession as a tenant, wrongfully denied the title of the plaintiff and alleged that he himself was the owner. Accordingly we remand the case to the lower appellate Court to arrive at findings on issue No. 1 and No. 2 in accordance with these directions of law. On both these issues we allow the parties to produce fresh evidence. The finding should be returned to this Court within a period of two months and 10 days will be allowed for objections.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //