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Alopi and ors. Vs. Gajadhar Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All323
AppellantAlopi and ors.
RespondentGajadhar Prasad and anr.
Cases ReferredAnand Sarup v. Chawwa. It
Excerpt:
.....perfectly clear therefore that the finding to which the judge meant to come was that the appellants or their predecessors had been in possession for considerably over twelve years. if the appellants had failed to prove adverse possession it might have been necessary to remit an issue on the nature of the structure erected by the appellants on the plot in suit......denied the plaintiff's title, and their defence amounted to an assertion of title by adverse possession. both the courts below have decreed the plaintiffs' suit.2. the findings of fact have not been so clearly stated as they might have been, and the present suit was disposed of by the lower appellate court in a judgment governing other appeals in which the circumstances were somewhat different. the learned district judge however definitely found that while the plaintiff was a cosharer of the proprietary interest in the land on which the house in suit stands, yet that house had been in the ' actual or constructive possession of the defendant alopi and his predecessors-in-interest for a number of years. ' he then went on to discuss the question of whether the possession of.....
Judgment:

Kendall, J.

1. This second appeal arises from a suit brought by Pundit Gajadhar Prasad and others who are unquestionably the part owners of a muhalla in Allahabad City. They sued the present appellants on the allegations that the appellants had been permitted by them to occupy a certain site in the muhalla but had recently made some encroachments on land of 'the plaintiffs in the neighbourhood in consequence of which the plaintiffs no. longer wished to permit them to occupy the land in dispute. The defendants-appellants denied the plaintiff's title, and their defence amounted to an assertion of title by adverse possession. Both the Courts below have decreed the plaintiffs' suit.

2. The findings of fact have not been so clearly stated as they might have been, and the present suit was disposed of by the lower appellate Court in a judgment governing other appeals in which the circumstances were somewhat different. The learned District Judge however definitely found that while the plaintiff was a cosharer of the proprietary interest in the land on which the house in suit stands, yet that house had been in the ' actual or constructive possession of the defendant Alopi and his predecessors-in-interest for a number of years. ' He then went on to discuss the question of whether the possession of the appellants had been that of a licensee as claimed by the plaintiff or whether it was adverse. There was no direct evidence to show in what manner the appellants' possession had started, and the Judge after discussing the case law on the question of whether in these circumstances possession could be held to be adverse or not came to a decision, which was based on the case of Anand Sarup v. Chawwa [1916] 34 I.C. 952 that the possession was not adverse. A plea which appears to have been raised in the lower appellate Court in the alternative that possession was by license and the license could not be revoked because the appellants had a permanent structure on the land in dispute was also disallowed on the ground that it was not proved that the appellants had ever received a license to build.

3. It has been argued that the decision of the lower appellate Court in regard to adverse possession is incorrect. In the case of Bhaddar v. Khairuddin [1905] 29 All. 133 it was held by a Bench of this Court that a person who was neither an agricultural tenant nor a village handicraftsman, but who was in possession of a house in the abadi which he and his predecessors-in-title had held for considerably more than twelve years without paying rent or acknowledging in any way the title of the zamindar to the site upon which it was built, had acquired an absolute ownership of the site. Sir John Stanley in his judgment remarked that the reasonable inference from the long uninterrupted possession and enjoyment of the property by Bhola and his predecessors-in-title was that they had acquired the absolute ownership either by a grant; or by adverse possession. The property there was within the Municipal limits of the city of Allahabad, as it is in the present case, and no doubt this passage in the judgment suggested to the appellants their alternative plea of a license to build, which was no part of their original defence. In a later decision in Incha Ram v. Bande Ali Khan [1911] 33 All. 757 a Pull Bench of this Court held that in a village which was not a purely agricultural village the defendants, who were inn-keepers and tobacco sellers who had not paid rent to the zamindar or acknowledged his title in any way, had been in adverse possession and had acquired a title. It. has been sought in argument to distinguish both these cases from the present one. The case of Bhaddar v. Khairuddin appears however to have been very similar. There appears to have been no definite evidence either that a license had been given by the zamindar or that the defendant had specifically denied the zamindars' title. It is true that in the present case the appellants themselves had not been in actual possession of the property for the whole of the period for which they have been found to have been in constructive possession, because they acquired the house by a deed of gift from a person whose title to it has not been proved; but if their predecessors' possession was adverse this fact will make no difference.

4. The case on which the plaintiff-respondent relies, and on which the lower appellate Court has based its decision, is however clearly distinguishable, for the defendant and his predecessors-in-title had been in the habit of paying certain dues and rendering services to the zamindar : Anand Sarup v. Chawwa. It was therefore impossible to hold that the defendant's possession was without the permission of the zamindar and was in defiance of his title. In the present case, as I have already said there is no evidence whatever of any agreement between the zamindars and the defendants or their predecessors in regard to, the terms on which this plot should be occupied.

5. It has been pointed out that the lower appellate Court has only found that the possession of the appellants over the plot in dispute had been ' for a number of years. ' In this part of the judgment the Judge has unfortunately somewhat confused the two questions of whether the appellants had been in possession and of whether that possession had been adverse or not. The first was a pure question of fact. The second was in the circumstances a mixed question of fact and law. The evidence on which the Judge relied consisted of certain papers and entries relating to the years 1892 to 1897 and 1910 to 1918, and it is perfectly clear therefore that the finding to which the Judge meant to come was that the appellants or their predecessors had been in possession for considerably over twelve years. If that possession was adverse to the proprietors their title has therefore matured.

6. I think that in the circumstances of this case the possession must be held to have been adverse. In the Full Bench decision to which I have referred, Incha Barn, v. Bande Ali Khan, it was held that an inference of adverse possession may be drawn from circumstances even in a village which was largely agricultural, and in the earlier case such an inference was drawn where the disputed land was within a Municipal area. The circumstances which justify the inference in either case were long possession and the absence of any proof of a license or agreement between the person in possession and the proprietor of the land. In my opinion therefore the inference should have been drawn in the present case that the defendants-appellants' possession was adverse.

7. It is not necessary to discuss the further argument about Section 60, Easements Act; if the appellants had failed to prove adverse possession it might have been necessary to remit an issue on the nature of the structure erected by the appellants on the plot in suit. As it is on the finding that the appellants' possession has been adverse and that their title has matured I must allow the appeal with costs in all Courts and direct that the plaintiff's suit be dismissed.

8. Certified that the case is a proper one for a Letters Patent appeal.


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