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Makhdoom Bakhsh Shah and ors. Vs. Hashim Ali - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All244; 29Ind.Cas.210
AppellantMakhdoom Bakhsh Shah and ors.
RespondentHashim Ali
Cases Referred and Ismail Ariff v. Mahomed Ghous
Excerpt:
specific relief act (i of 1877), section 9 - suit for possession based on possessory title--defence--defendant's right to set up title. - - the first court found that the plaintiff had failed to prove any title to the land in himself, and, upon this finding alone, dismissed the suit. the learned district judge has not clearly stated that he held this document to be proved :but there is a passage in his judgment which sheo vs that he regarded it as evidence of the fact of the plaintiff's possession......the plaintiff alleged that he had been for many years in actual possession and occupation of the land in suit, having erected a thatched hut thereon and possessing the rest of the land, not actually covered by the suit, as a courtyard appertaining to the fame. he further alleged that, during his absence from the village, the defendants, without any sort of right or title, had demolished the hut which belonged to him and taken possession of the land and of the tree, erecting a shed of their own on some portion of the land. the defendants' reply was that the plaintiff had never been in possession, that they had never dispossessed him, but that on the contrary they themselves had been in possession and occupation of the land for many years. the first court found that the plaintiff had.....
Judgment:

Piggott, J.

1. This is one of those second appeals in which the only real difficulty is to ascertain with certainty what facts the lower Appellate Court intended to find, or must be taken to have found. The suit was one for recovery of possession over a certain plot of land and a tree situated thereon. If I rightly understand the pleadings there never was any question of title, strictly so called, in issue between the parties. The land in question is situated in the abadi, or inhabited site, of an agricultural village, and the proprietors of the1 soil are no doubt the zamindars of the village. The plaintiff alleged that he had been for many years in actual possession and occupation of the land in suit, having erected a thatched hut thereon and possessing the rest of the land, not actually covered by the suit, as a courtyard appertaining to the fame. He further alleged that, during his absence from the village, the defendants, without any sort of right or title, had demolished the hut which belonged to him and taken possession of the land and of the tree, erecting a shed of their own on some portion of the land. The defendants' reply was that the plaintiff had never been in possession, that they had never dispossessed him, but that on the contrary they themselves had been in possession and occupation of the land for many years. The first Court found that the plaintiff had failed to prove any title to the land in himself, and, upon this finding alone, dismissed the suit. One of the grounds expressly taken by the plaintiff then he appealed to the Court of the District Judge was that he was entitled to a decree on proof of the fact of his possession. At the hearing of the appeal by the District Judge, a question of procedure arose which has to some extent complicated the case. The defendants themselves in the Court of first instance had pleaded that the land in suit had, many years previously, been occupied by tre residential house of a tenant named Reoti. They alleged that the said Reoti had died many years prior to the institution of the suit, leaving no heir, and that they had themselves occupied the site ever since the time of Reoti's death. In connection with this plea the plaintiff produced in the Court of first instance a mortgage-deed in his favour purporting to be executed by this Reoti Kahar. The learned Munsif seemed to have thought that the production of this document could not help the plaintiff's case, because there was nothing in his plaint to indicate that he claimed possession of the land in suit on the strength of any title as a mortgagee. He also held that the document had not been sufficiently proved by the evidence of the scribe, Uttam Lal. The learned District Judge has not clearly stated that he held this document to be proved : but there is a passage in his judgment which sheo vs that he regarded it as evidence of the fact of the plaintiff's possession. The document is unregistered, and the transaction was one of usufructuary mortgage for a sum of less than Rs. 100 so that it could have been effected at the date in question without execution of any document. Under the Circumstances the learned District Judge was entitled to hold it proved, and he seems to so held, that Reoti, who was admitted before him to have been the former occupier of the land in suit, had transferred, or purported to transfer, whatever rights of occupation he possessed' to the plaintiff by way of usufructuary mortgage. What the learned District Judge has, in my opinion, undoubtedly found is that, on the evidence as a whole the fact of the plaintiff's being in possession, and of his wrongful dispossession by the defendants at or about the date alleged in the plaint, is satisfactorily proved. On this finding he has decreed the plaintiff's suit. The contentions before me in second appeal are substantially three. One is to the effect that there has been no clear finding by the lower Appellate Court on the fact of the plaintiff's possession and with regard to his dispossession by the defendants. This plea is to my mind 'concluded by a perusal of the judgment of the lower Appellate Court. The second point taken is that the unregistered mortgage by Beoti in favour of the plaintiff was not legally proved. I think, under the circumstances of the case, there was evidence on the record upon which the lower Appellate Court was entitled to come to the finding which 1 have already set forth. The third point taken is that the lower Appellate Court made an entirely new case for the plaintiff. This has been argued before me ou the assumption that the learned District Judge must be taken to have decreed the plaintiff's claim as a claim for recovery of possessioii under Section 9 of the Specific Relief Act. There is authority for the proposition that a suit for recovery of possession based upon title should not be allowed to be converted into one under Section 9 of the Specific Relief Act. I do not think however, that the learned District Judge has offended against this principle. The argument addressed to me on behalf of the defendants-appellants overlooks the fact that there can be a suit in ejectment on the basis of possessory title, maintainable against any person who cannot show title in himself, apart altogether from the provisions of Section 9 of the Specific Relief Act. The difference is that, in a suit under the Specific Relief Act, the defendant will not be allowed to plead or to prove title in himself; whereas in a suit upon possessory title brought independently of the provisions of the Specific Relief Act, or even after the eriod of limitation prescribed for a sftit under Section 9 of that Act has expired, the defendant will be allowed to plead his title, and to prove it if he wants to do so. If he fails to do so, the plaintiff can get a decree, even though he has been able to prove nothing more than possession by himself of the property in suit up to the date of his wrongful ejectment by the defendants. Authority for these propositions may be found in Pemraj Bhavaniram v. Narayan Shivaram Khisti 6 B. 215; Wali Ahmad Khan v. Ajudhia Kandu 13 A. 537; A.W.N. (1891) 196; Gobind Prasad v. Mohan Lal 24 A. 157 and Ismail Ariff v. Mahomed Ghous 20 C. 834 : 20 I.A. 99. As I have already pointed out, the present suit is one in which fctle, other than what may be called possessory title, was not set up by, and was not in fact vested in, either of the parties, I do not think that the decision of the learned District Judge is open to objection upon any of the grounds taken. I dismiss this appeal with costs.


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