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Jharap Rai Vs. Jaint Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All418; 71Ind.Cas.1033
AppellantJharap Rai
RespondentJaint Rai and ors.
Cases ReferredMohima Chunder Mozoomdar v. Mohesh Chunder Neoghi
Excerpt:
limitation act (ix of 1908), schedule i, articles 142, 144 - adverse possession--burden of proof. - - the learned district judge held that the case was governed by article 142 of the limitation act and that, as there was nothing to show that the plaintiff has been in possession within 12 years, his suit must fail. ) still holds good......the court below are these: the parties are joint owners of an unpartitioned village. they are in separate possession of sir plots. they cultivated, two adjoining plots, nos. 1209 and 1210, the latter being in the possession of the plaintiff. this was in 1901 (fasli 1308). at the time of the suit the defendant was in possession of 10 biswas in no. 1210 which has been formed into a separate subplot. there is no proof whatever as to when this change took place, the allegation in the plaint being that the plaintiff was originally in proprietary possession of this area, and that the defendant had dispossessed him by encroaching on the plaintiff's land to the extent of the area claimed. the learned district judge held that the case was governed by article 142 of the limitation act and that,.....
Judgment:

Daniels, J.

1. This appeal arises out of a suit originally brought for possession of 1 bigha and 2 biswas of sir land. The First Court decreed it to the extent of n biswas 17 dhurs. The lower Appellate Court has dismissed it. The findings of the Court below are these: The parties are joint owners of an unpartitioned village. They are in separate possession of sir plots. They cultivated, two adjoining plots, Nos. 1209 and 1210, the latter being in the possession of the plaintiff. This was in 1901 (Fasli 1308). At the time of the suit the defendant was in possession of 10 biswas in No. 1210 which has been formed into a separate subplot. There is no proof whatever as to when this change took place, the allegation in the plaint being that the plaintiff was originally in proprietary possession of this area, and that the defendant had dispossessed him by encroaching on the plaintiff's land to the extent of the area claimed. The learned District Judge held that the case was governed by Article 142 of the limitation Act and that, as there was nothing to show that the plaintiff has been in possession within 12 years, his suit must fail.

2. In appeal it is contended that the case was governed by Article 144 and the ruling of their Lordships of the Privy Council in Secretary of State v. Chelikani Rama Rao 35 Ind. Cas. 902 : 39 M. 617 : 31 M.L.J. 324 : 20 C.W.N. 1311 : 1916 : 2 M.W.N. 224 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486 : 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.), and of this Court in J at Chand v. Girwar Singh (sic)2 Ind. Cas. 366 : 41 A. 3669 : 127 A.L.J. 814. have been referred to. It appears to me that there is a tendency on the part of some Courts to give too wide an extension to these decisions. Both were cases falling definitely under Article 144. In the Privy Council case the area in dispute had arisen in the bed of the sea near the mouth of a river, and in the case in this Court the plaintiff's case was that the defendant was a mere licensee on behalf of the plaintiff. In cases to which Article 142 applies, that is to say, cases in which there has been a dispossession of the plaintiff, the ruling of the Privy Council in Mohima Chunder Mozoomdar v. Mohesh Chunder Neoghi 16 C. 473 : 16 I.A. 23 : 5 Sar. P.C.J. 321 8 Ind. Dec. (N.S.) 312 (P.C.) still holds good. In this case there certainly was an allegation on the plaintiff's part that he was originally in possession and had been dispossessed.

3. There is, however, another ground on which the decree of the Court below can be supported and it has been supported by the respondents learned Counsel. On the findings of the Court below this is not a case of adverse proprietary possession at all. The village is undivided and the ownership of other co-sharers is not affected by the fact that one co-sharer cultivates certain land as sir or khudkasht. He is liable to account to the other proprietors for such land at the distribution of profits. In this case it is the finding of the Court below that the ownership of the village is joint, though the parties are in separate possession of their sir. All that has happened in this case, so far as the record shows, is that at some time after 1901 the plaintiff has ceased to cultivate this particular portion of plot No. 1210 as his sir and the defendant has begun to cultivate it. Possession which can be referred, to lawful title should be so referred, and according to the finding of the Court below there is nothing to show that there has been any unlawful ouster of the plaintiff from this land. It appears to me, therefore, that the decree of the Court below is correct and I dismiss the appeal with costs.


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