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(Bohra) Kanhaiya Lal Vs. Girwar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1929All753
Appellant(Bohra) Kanhaiya Lal
RespondentGirwar and ors.
Cases ReferredKamakhya Narayan Singh v. Ram Raksha Singh A.I.R.
Excerpt:
- interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - possession is in itself title and good against everybody except the true owner. in such cases if he proves his title, the burden of establishing title by adverse possession for more than 12 years lies upon the defendant and if he succeeds in proving that fact, the suit must fail;.....a period of more than 12 years. to cases in which the plaintiff claims relief on the basis of his title article 142 has no application that article applies to suits in which the plaintiff claims possession of property on the ground that while in possession he was dispossessed, or his possession was discontinued by the defendant. in other words that article is restricted to cases in which the relief for possession sought by the plaintiff is based on what may be styled as possessory title. every person is entitled to have his peaceful possession protected and no one has a right to take the law in his own hands and disturb the peaceful possession of another. possession is in itself title and good against everybody except the true owner. in short, there may be cases in which a person,.....
Judgment:

1. This appeal must be allowed. It is impossible to contest the proposition that the onus of establishing title by reason of possession for a certain requisite period lies upon the person asserting such possession. In other words, the burden of proving title by adverse possession lies upon the person claiming to have acquired title by such possession. The findings of the lower appellate Court in the present case are that the plaintiff's title to the property in dispute has been proved, and that the evidence of both parties as regards possession is worthless. On these findings, in our judgment, the plaintiff was entitled to a decree.

2. The article applicable to a suit in which the plaintiff sues for possession of immovable property on the basis of his title is Article 144, Sch. 1, Lim. Act. and if in such a suit the plaintiff proves his title, he is entitled to a decree unless the defendant succeeds in establishing his adverse possession for a period of more than 12 years. To cases in which the plaintiff claims relief on the basis of his title Article 142 has no application That article applies to suits in which the plaintiff claims possession of property on the ground that while in possession he was dispossessed, or his possession was discontinued by the defendant. In other words that article is restricted to cases in which the relief for possession sought by the plaintiff is based on what may be styled as possessory title. Every person is entitled to have his peaceful possession protected and no one has a right to take the law in his own hands and disturb the peaceful possession of another. Possession is in itself title and good against everybody except the true owner. In short, there may be cases in which a person, though not the true owner, has been in peaceful possession of property and his possession is disturbed. In such cases the person dispossessed has a right to claim to be restored back to possession on proving the fact of his possession and his dispossession or discontinuance of his possession by the defendant within a period of 12 years prior to the institution of the suit. To such cases Article 142 applies, and the burden of proving the fact that the plaintiff was in possession and was dispossessed within 12 years of the date of the suit lies on the plaintiff and, on proving these facts, the plaintiff is entitled to a decree unless the defendant established that he is the true owner of the property in dispute.

3. Another class of cases are those in which the plaintiff sues for possession of immovable property both on the ground of his title and on the ground of his possession having been disturbed by the defendant. In such cases if he proves his title, the burden of establishing title by adverse possession for more than 12 years lies upon the defendant and if he succeeds in proving that fact, the suit must fail; otherwise the plaintiff is entitled to a decree. To this extent Article 144 will apply to such a suit. But it may be that the plaintiff, though not able to substantiate his title, is in a position to prove his possession and dispossession by defendant within 12 years. If that be the case, Article 142 will apply and burden will lie on the plaintiff. In short, suits for possession based both on the plaintiff's title and possessory title invite the application of Arts. 142 and 144, according to the varying circumstances of each case.

4. The view that we take is in consonance with the view of their Lordships of the Judicial Committee in Secy. of State v. Chellikani Rama Rao A.I.R. 1916 P.C. 21 and the decisions of this Court reported in Jaichand v. Girwar Singh [1919] 41 All. 669 and Ali Hammad v. Ghur Pathar : AIR1925All454 . The learned advocate for the respondents has placed reliance on the case of Sita Ram Dube v. Ram Sundar Parsad : AIR1928All412 and A.I.R. 1928 P.C. 146 and 165. In our opinion, neither of these cases have any bearing on the controversy before us. All that was decided in the case reported in Sita Ram v. Ram Sundar : AIR1928All412 was that, where a purchaser in execution has obtained delivery of possession, in accordance with law, that would, as between the parties to the proceedings or delivery of possession, give a new start for the computation of limitation and the auction purchaser is entitled to a decree for possession provided he brings his claim within 12 years from the date of delivery of such possession. No one can controvert that proposition of law, but that proposition has no application to the facts of the present case.

5. The case of Kamakhya Narayan Singh v. Ram Raksha Singh A.I.R. 1928 P.C, 146 also has no bearing on the question before us. In that case the claim of the plaintiff, whose predecessor in-title had granted a lease, as against the assignee of the lessee was dismissed on the ground that no contract of tenancy between the lessor and the assignee of the lessee had been established and that the lessee had established his title by adverse possession for a period of more than 12 years. Similarly in the last case cited by the learned Counsel for the respondent the claim of the plaintiff was dismissed as against the defendant on the ground that the plaintiff having obtained a decree for possession against the defendant of that suit had taken no step for a period of 12 years to enforce that decree and to obtain possession of the property. It is manifest that from the date of the decree for possession the possession of the defendant of that suit was in fact and in law adverse to the plaintiff of that suit and, as such, the view expressed by their Lordships of the Judicial Committee in that case in no way militates against the view taken by us in the present case. For the reasons that we have given we allow this appeal, set aside the decrees of the Courts below and decree the plaintiff's suit with costs in all Courts.


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