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S. Mohammad Ahmad and ors. Vs. Babu and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All442; 71Ind.Cas.762
AppellantS. Mohammad Ahmad and ors.
RespondentBabu and ors.
Cases ReferredKishan Kunwar v. Fateh Chand
Excerpt:
second appeal - possession adverse or permissive--inference drawn from documents or facts in evidence--question of law--weight to be attached to evidence, whether question of law. - .....be granted a perpetual injunction forbidding the defendants to make any construction on the land in dispute or interfere with it in any way to the prejudice of the plaintiffs. objection has been taken to the third relief on the ground that the plaintiffs ought to have asked for possession of the entire area, but it is not the plaintiff's case that they have been dispossessed from any part of the area except the portion on which the chabutra stands and it was not, therefore, necessary for them to ask for any further, relief.2. a large amount of documentary evidence was produced on both sides. the plaintiffs produced documents commencing with a report of the kazi in the year hijri 1198, nearly a century and a half ago, and including another old document called the muchilka of the.....
Judgment:

Deniels, J.

1. This is a second appeal in a case which has prima facie been decided by the Courts below on grounds of facts. The plaintiffs are certain persons known as Thanimalis who act as officiating priests of a temple of Sitlaji. The defendants are Zemindars of the village. The temple is admittedly a very old one. It is said that, according to the Gazetteer, it is some 400 years old. The temple is held under a rent-free grant from the Muhammadan Kings. The allegations in the plaint were that there was an area of 15 bighas 15 biswas appurtenant to the temple of which the plaintiffs; have all along been, in adverse proprietary possession and with, which the Zemindars have no right of interference. The defendants have erected a small platform or chabutra on a portion of this area. The plaintiffs asked that the defendants be ordered to demolish this platform; that the plaintiffs be put in possession of its site and that the plaintiffs be granted a perpetual injunction forbidding the defendants to make any construction on the land in dispute or interfere with it in any way to the prejudice of the plaintiffs. Objection has been taken to the third relief on the ground that the plaintiffs ought to have asked for possession of the entire area, but it is not the plaintiff's case that they have been dispossessed from any part of the area except the portion on which the chabutra stands and it was not, therefore, necessary for them to ask for any further, relief.

2. A large amount of documentary evidence was produced on both sides. The plaintiffs produced documents commencing with a report of the Kazi in the year Hijri 1198, nearly a century and a half ago, and including another old document called the muchilka of the year 1214 Hijri. Apart from the question of limitation and other questions not now material, the learned Munsif framed two important issues:

(a) Does the site of the platform in dispute attach to this temple? (b) Had the Muhammadan Government granted the land in dispute revenue-free to the plaintiffs' predecessors as priests of the temple? On the evidence before them both Courts came to the conclusion that the land in dispute was appurtenant to the temple; that the plaintiffs are in adverse possession of it, and that the defendants have no right to interfere with it. It has been argued that because the evidence is mainly documentary the findings of the Court below are findings of law and not of fact, and I have been referred in particular to two rulings in support of this contention. In Satgur Prasad v. Raj Kishore Lal 55 Ind. Cas. 486 : 18 A.L.J. 235 : 11 L.W. 384 : (1920) M.W.N. 3 : 24 C.W.N. 394 : 38 M.L.J. 259 : 2 U.P.L.R. (P.C.) 55 : 22 Bom. L.R. 451 : 42 A. 152. : 46 I.A. 107 : 27 M.L.T. 200 (P.C.) their I Lordships of the Privy Council held that the question whether possession is adverse or permissive may be one of legal inference from documents and that in such a case the question in dispute was a question of law. Similarly, in the other case cited, Kishan Kunwar v. Fateh Chand 29 A. 203 : 4 A.L.J. 38 : A.W.N. (1906) 307, the dispute was whether the persons in the occupation of certain groves and land were the proprietors or not. The facts of the case were undisputed. In second appeal this Court held that the Subordinate Judge had drawn a wrong inference of late from the facts which were in evidence before him. It accordingly set aside his judgment in second appeal. In this case the question is mainly one of the weight to be attached to the different items of evidence on both sides. None of the judgments which have been cited have been relied upon as res judicata. They have been relied on as instances in which the rights claimed by the plaintiffs were either recognised or not recognised. The question of the weight to be attached to such instances is certainly a question of fact. It is argued also that the Courts below were wrong in presuming that the oldest document relied on by the plaintiffs related to this land. The document is a very old one and refers to the temple of Sitlaji; it was produced from the custody of the plaintiffs and mentions an. area of 15 bighas and 15 biswas, but there is nothing in it to definitely identify the area with that now in dispute. I am not prepared to hold, however, that the Courts below were wrong in treating it as referring to this land. They read it in connection with the other evidence, and the document is not produced in this case for the first time. It has admittedly been produced in a previous litigation relating to this land. The case has been decided on questions of fact and I am not prepared to hold there is any error of law sufficient to justify the findings being set aside in second appeal. I accordingly dismiss the appeal with costs.


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