1. The suit out of which this appeal arises relates to a small plot of land in the City of Bareilly. The plaintiffs claimed as owners of the land alleging that they had been dispossessed by the first defendant, Hafiz Ahmad Husain, who had built a shop on the plot. They accordingly asked for restoration of possession with demolition of the shop as well as for damages and mesne profits. The Municipal Board of Barelly applied to be and was made a defendant during the progress of the suit. The defendants denied the plaintiff's ownership and pleaded adverse possession and limitation. The Trial Court decreed the suit and two appeals were preferred to the lower Appellate Court by Hafiz Ahmed Husain and the Municipal, Board respectively.
2. The learned Subordinate Judge found oh the evidence that the title in one-third of the land was with the plaintiffs. He found that the plot had been for many years lying unoccupied and that the Municipal Board had been using it for the deposit of refuse. He found, however, that this use of the land by the Municipal Board did not amount to adverse possession or to the dispossession of the plaintiffs. He found that the Municipal Board did in fact take adverse possession of the land some ten years before, the suit when they made it fiucca. This, however, was within limitation. In 1913 the Municipal Board sold the land to the defendant, Hafiz Ahmed Husain, who erected a shop upon it. An issue was argued before the learned Judge with reference to Section 51 of the Transfer of Property Act. The learned Subordinate Judge held that the respondent, Hafiz Ahmed Husain, being a transferee of the plot in suit, made the improvement upon it believing in good faith that he was absolutely entitled thereto. He, therefore, made an order under Section 51 requiring the plaintiffs to transfer their share in the land to the defendant at the market-value which he decided to be Rs. 40.
3. Against this decree the plaintiffs appeal. They have not appealed against the appellate decree passed on the appeal by the Municipal Board, and the question was raised at the hearing, though not strongly pressed, as to whether this decree might not operate as res judicata. It appears to me that it cannot do so. The Municipal Board, if it ever had any interest in the land, has parted with that interest to the first respondent. The only relief granted to the plaintiffs or asked for by them was a relief against Hafiz Ahmed Husain. They complain that the relief given them is inadequate and hence their appeal. As they require no relief against the Municipal Board they had no occasion to appeal against the decree passed en the Board's appeal.
4. On the merits of the case the sole ground taken by the plaintiffs appellants is that the issue under Section 51 of the Transfer of Property Act was not raised in the Trial Court and that the defendant ought not to have been allowed to raise it in the Court below. It is found by the learned Subordinate Judge that the issue was not raised in the Trial Court and this I find to be correct. The defendant relies on paragraph 7 of his written statement in which he said that if for the sake of argument the plaintiffs be proved to have any right even then they were not entitled, to have the shop demolished or to obtain possession after the shop had been erected at great expense by the defendant. This was really a plea of acquiescence and estoppel and the issue raised upon it by the Munsif was an issue of estoppel, namely:
Whether the suit is barred by Section 115 of the Evidence Act.
5. It is not, however, true that the issue was raised for the first time at the hearing of the appeal. The case was not decided till 25th June 1921. On 9th November 1920, more than seven months earlier, Hafiz Ahmed Husain had put in an application urging that, even if the plaintiff's ownership were upheld and the possession of the Municipal Board found not to have been adverse, he was still entitled to the benefit of Section 51 of the Transfer of Property Act. The application was considered in presence of the Pleaders of both parties and the plaintiffs' Pleader agreed to the land being valued by an Amin. Subsequently, on 7th December, the parties came to an agreement as to the value of the land. The appellants are quite correct in urging that this does not mean that they agreed that plea under Section 51 of the Transfer of Property Act was a good plea. On the contrary, they stoutly resisted it and the plea was strenuously contested before the learned Subordinate Judge. It does, however, mean that they had notice that the plea was going to be raised and that they took no objection to the plea being raised and heard in the Appellate Court. Under the circumstances, they cannot be heard to urge now that the plea ought not to have been entertained by the learned. Subordinate Judge.
6. A cross-objection is taken by the respondent that the finding of the Court below as to adverse possession is wrong and that the suit ought to have been dismissed as time-barred. The appellants have cited the ruling in Framji Cursetji v. Gouldas Madhowji 16 B. 338 : 8 Ind. Dec. (N.S.) 703 in support of the decision of the Court below and the circumstances are very similar. I agree with the view taken by the Court below that, until the land was made pucca, ten years before the suit the acts alleged on the part of the Municipal Board are not sufficient to amount the dispossession of the plaintiffs or to constitute adverse possession.
7. For the reasons already given the appeal and the cross-objection are both dismissed with costs including in this Court fees on the higher scale.