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Lakhu and ors. Vs. Sardar Lal Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All399; 71Ind.Cas.265
AppellantLakhu and ors.
RespondentSardar Lal Singh and anr.
Cases ReferredIndia v. Chelikani Rama Rao
Excerpt:
adverse possession - proof--enclosing land for keeping cattle during daytime--possession, nature of. - .....plum trees, and for an injunction.2. the plaintiffs are the zemindars of the village in which the land in dispute is situate. their allegation was that the defendants had taken wrongful possession of the plot hi dispute and had cut down certain trees; hence the suit.3. the defence of defendants nos. 1 to 4 was that they had been in possession of the land in dispute for more than 12 yeans, that the cattle troughs which stood on the laud were very old ones and that they had not cut down the of 1 trees.4. the court of first instance came to the conclusion that the land in dispute was situated within the ambit of the plaintiffs' land, that the defendants had been in possession for more than 12 years and that the trees cut were worth rs. 5 only. in the result it dismissed the claim.5. on.....
Judgment:

Gokul Prasad, J.

1. This appeal arises out of a suit for possession of an enclosute and Rs. 10 as damages on account of the cutting down by the defendants of two plum trees, and for an injunction.

2. The plaintiffs are the Zemindars of the village in which the land in dispute is situate. Their allegation was that the defendants had taken wrongful possession of the plot hi dispute and had cut down certain trees; hence the suit.

3. The defence of defendants Nos. 1 to 4 was that they had been in possession of the land in dispute for more than 12 yeans, that the cattle troughs which stood on the laud were very old ones and that they had not cut down the of 1 trees.

4. The Court of first instance came to the conclusion that the land in dispute was situated within the ambit of the plaintiffs' land, that the defendants had been in possession for more than 12 years and that the trees cut were worth Rs. 5 only. In the result it dismissed the claim.

5. On appeal the lower Appellate Court has agreed with the findings of the Court of first instance that the defendants had been in possession for more than 12 years but that their possession was not such as to be adverse to the plaintiffs. It accordingly decreed the appeal, the plaintiffs' suit for possession and for an injunction with Rs. 5 as damages.

6. The defendants come here in second appeal and the first ground taken is that no plea of adverse possession was raised by the defendants and the lower Court was, therefore, not justified in determining that question against the defendants. It is not easy to understand what this really means. This plea has been argued at great length by the learned Vakil for the appellants who has tried to point out a distinction between cases governed by Articles 142 and, 144 of the Limitation Act respectively. He has urged with great force that the lower Appellate Court ought not to have entered into the question of adverse possession, as such a plea was not raised by the defendants. If such a plea was not raised by the defendants there was no defence to the suit and the suit ought to have been decreed off hand. When this point was explained to the learned Vakil for the plaintiffs he said that the plea of limitation was raised and that the decision was incorrect, having regard to the ruling of their Lordships of the Privy Council in the case of Secretary of State for India 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.). That case is very much in point. In that case islands had appeared at the mouth of the river Godawari, admittedly, years before the passing of the order of Government directing them to be made reserved forests. In that case it was admitted that the Government had never been in possession of them and that the defendants had been in possession of them for more than 20 years, and nonetheless their Lordships of the Privy Council have held that it was for the defendants to prove that they were in adverse possession for more than 60 years before they could claim by adverse possession. The facts of that case are very similar to the facts of the present case. Here the land in dispute was within the ambit of the Zemindari of the plaintiffs. The defendants tad been found to have been in possession for more than 12 years but the nature of their possession was such that, according to the finding of the lower Appellate Court, it could not amount to a denial of the plaintiffs' title or adverse possession. The plot in dispute was waste land, that is, unoccupied by houses situate in the abadi. The defendants had built a wall a foot and a half (one hath) in height are thus enclosed it, and used to keep their cattle there in the day time. This was such a possession which would not make the Zemindar try to kick the defendants out. The land was of no immediate use to him and was used for temporary purposes by the defendants. This would not amount to adverse possession. The defendants, if they set up adverse possession, were bound to show that the possession was adverse and had been as such for more than 12 years. Such temporary user, which would be unnoticed or permissible would not amount to adverse possession. In my opinion the view taken by the lower Court was right. I, therefore, dismiss this appeal with costs.


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