1. This is an action brought for a declaration of title, possession and arrears of rent of a certain house and trees. The plaintiffs alleged that they, together with the defendants Nos. 4 to 7, who have been made pro forma defendants, are the heirs of Sheikh Farhat Husain, that the said property was sold by the defendants Nos. 1 and 2 to the said Farhat Husain for Rs. 99-15-0 by a sale-deed dated the 26th of March 1901, that the defendant No. 3 was a. tenant at Us. 1-8-0, that no rent had been paid since April 1913 and that the defendant No. 3 repudiated the plaintiffs' title on the 15th of April 1914. They further alleged that the defendant No. 1 had brought a collusive suit against defendants Nos. 2 and 3 to which the plaintiffs were no party, and by which defendant No. 3 obtained in March 1914 a decision in his favour that he was the owner. They further alleged that the original sale-deed was in the possession of defendants Nos. 4 to 7. The defence of the defendant No. 3 in substance denied the. plaintiffs' title and alleged that he himself was the owner. No other written statement appears on the record. There was no plea of adverse possession nor was any question pleaded as to the Statute of Limitation. So far the dispute appears to be a very ordinary and a simple one of title. The Munsif found that the original sale-deed was missing and that the plaintiffs were entitled to put in a certified copy, which is not suggested to be otherwise than genuine. The Munsif found that it was genuine and that it transferred title to the property in question to the plaintiffs' father. He also found that the defendant No. 3 was a tenant, that he had received a notice in quit from thee plaintiffs' father in 1904, that the said notice was sent on a post card which was traced to the possession of the defendant on the 15th of June 1914, and that the defendant, when questioned about the same, denied all knowledge of it. He found also that the defendant was put back in possession by the plaintiffs' father on promising to pay rent regularly, that the plaintiffs had been realizing rents and although the defendant was able to produce receipts for payment of house-tax, he could produce none for 1904, the year when he had been ejected. He found himself unable to believe the relevant evidence called on the defendant's behalf, most of which was irrelevant. Under this circumstances it is not surprising that the Munsif gave judgment for the plaintiffs. It is difficult to see what else he could have done. On appeal the District Judge said that two questions arose: the first, one of title, and the second, whether the plaintiffs had been in possession within the last twelve years. No such question as the second arose at all. It was not pleaded and it was not raised in the memorandum of appeal.
2. On the question of title, he held that the copy of the sale-deed was inadmissible. In this I think he was wrong. Even if paragraph 8 of the plaint, alleging that the defendants Nos. 4 to 7 had got the original, was not a sufficient notice to produce, their possession of it as co-heirs would be both lawful and natural and the uncontradicted testimony of the plaintiffs that they had searched for it seems to me sufficient to entitle the plaintiffs to put in their copy. The plaintiffs' position would no doubt be stronger, if they could show who last had it and if they had summoned them as witnesses to produce it. But I think the copy was admissible under Section 65 (a) of the Indian Evidence Act, inasmuch as the original appears to be in the possession of the defendants Nos. 4 to 7 who knew from the plaint that they would be required to produce it. This, however, is of no importance. The District Judge clearly overlooked the provisions of Section 167 of the Evidence Act. There was abundant evidence if the lower Appellate Court believed it (the Munsif had already believed it) to justify the decision. The District judge appears to have ignored it. At any rate he has come to no decision upon it.
3. It was, however, argued before me that there was a finding of fact which was fatal to the plaintiffs' case, namely, that the plaintiffs had not been in possession within limitation. I have no idea what this finding means. If it was intended to be a finding that the defendant had been in adverse possession for more than twelve years, it was not competent for the Judge to find it. The point was never raised by the defendant who pleaded his own title. But before the point can in any case be decided, it is necessary first to dispose of the question of the plaintiffs' title. If that failed, the suit failed. If the plaintiffs succeed in establishing their title, the question, if raised by the defendant, would then arise whether the plaintiffs had been dispossessed and whether the defendant No. 3 was their tenant, and whether his possession had become adverse and, if so, how and when. If the District Judge meant physical possession the finding is irrelevant. It was common ground that the defendant No. 3 was in physical possession. The plaintiffs alleged that they had been in receipt of rent up to April 1913 and that in 1904 their father was in actual physical possession. The District Judge has not addressed his mind to this point at all, nor has he dealt with the very clear finding of the Munsif. If the District Judge meant that even if the plaintiffs proved title they had still to prove what has been called 'subsisting title' within twelve years, I find myself unable to agree with him. The plaintiffs did not allege that they had been dispossessed. They claimed a declaration of title upon the allegation that the defendant had repudiated it. If they established I their title, the onus was on the defendant both to plead and to prove adverse possession for the statutory period. This has always been the law in England, and was recently re-affirmed by the Privy Council in the case referred to by Mr. Iqbal Ahmad and reported as Secretary of State v. Ghelikani Rama Rao (2). The relevant passages are to be found at page 1126. It overruled four decisions of the Madras High Court, and the cases in this country which have laid down the contrary must be taken to be no longer the law. When a plaintiff admits dispossession, different considerations arise. I am of opinion that the expression in the judgment of the District Judge relied upon by the respondent before me is not a finding of fact at all. It is a mistaken statement of fact and law founded upon a misdirection upon a point which was not before him. I have no alternative but to refer issues to the lower Appellate Court in order that final findings may be arrived at. I was asked to remand the whole case; but I see no real advantage to the parties in doing so. It is an unfortunate result. The whole value of the property in dispute is below Rs. 100. The case raised by the pleadings and decided by the Munsif appears to have been a simple and straightforward one. The plaint was filed nearly three years ago. This is the third Court in which it has been litigated-The costs must already exceed the whole value of the property and there are still issues of fact undecided. I refer the following issues:-(1). Does it appear that the original sale-deed was in the possession of the defendants Nos. 4 to 7, or one or other and which of them?(2). Have the plaintiffs made all reasonable search for the original?(3). Is the original sale-deed lost, or have the plaintiffs been prevented for any reason, not arising from their own default or neglect, from producing it before the Munsif?(4). Did the defendant No. 3 become the tenant of the plaintiffs' father sometime before 1904 at a rent of Rs. 1-8-0 or at some other and what rent?(5). Was the defendant No. 3 ejected by the plaintiffs' father in or about the year 1904?(6). Did the defendant No. 3 become the tenant of the plaintiffs' father at any and what time after 1904?(7). Did the defendant No. 3 pay rent of Rs. 1-8-0 or any other and what rent to the plaintiffs' father or to the plaintiffs or any of of them at any and what time after 1904?(8), Is there sufficient evidence to establish the plaintiffs' title independently of the certified copy of the sale-deed?
4. The parties will be at liberty to tender any additional evidence on these issues. On return of the findings ten days will be allowed for objections.