K.K. Sharma, J.
1. This is an appeal by Ladhuram, Rambilas and Mohanlal three of the defendants in a suit for a declaration and injunction against the plaintiff respondents Surajbux and Jagdish Narain. Mst. Narayani and Lakshmi Narain were also implea-ded as defendants but they have not appealed and have been impleaded in this appeal as respondents. The plaintiffs alleged that in village Karad, there is a pacca house with kaccha compound which is fully described in para No. 1 of the plaint.
In this house there was a room 'APQS' facing west and shown in red colour in the plan attached to the plaint. This room marked with capital letter 'A' on the plan had been in exclusive possession of the plaintiffs for a very long time since the time of their ancestors. In this room the plaintiffs' Moth was stored and the room was locked.
The defendants Nos. 1 to 4 sometime in February, 1947 put up their lock on the main gate of the house thus blocking the way of the plaintiffs to the room in dispute. It was alleged that the plaintiffs had asked the defendants several times to open up the lock of the main gate and not to obstruct the plaintiffs' way to the room in dispute. The defendants, however, did not listen to the plaintiffs and continued to obstruct their way to the said room.
The plaintiffs prayed that they be declared owners in possession of the disputed room as well as of 448 Maunds 24 Seers of Moth stored therein, and the defendants be restrained from interfering with the plaintiffs' use of the disputed room either by locking up or by any other means. It was also prayea that the plaintiffs be declared joint owners of the chowk, staircase, Darichi and Tibari shown in white colour in the plan attached to the plaint.
2. Of the five defendants, the appellants Ladhu-ram, Rambilas and Mohanlal filed one written statement, Mst. Narayani filed another written statement and Lakshmi Narain admitted the plaintiffs' claim. The appellants denied the plaintiffs' ownership or possession of the room in dispute. They also denied their ownership of the Moth in dispute. They averred that they were the exclusive owners of the room in dispute as well as the Moth and had been in possession of the room, in dispute for a very long time.
Mst. Narayani also denied the plaintiffs' ownership or possession of the disputed room as well as the Moth, and pleaded that she alone was the exclusive owner of the entire house including the disputed room. She denied that any Moth belonging to the plaintiffs had been stored in the disputed room and said that the plaintiffs had no right of ingress and egress to and from the house in dispute.
3. The learned Civil Judge, Phulera who tried the case framed four issues which when translated into English read as follows :
1. Whether the disputed room facing west described in para 2 of the plaint was the property of the plaintiffs and was in their possession.
2. Whether the defendant No. 4 in collusion with defendants Nos. 1, 2 and 3 stopped the ingress and egress to and from the house to the disputed room by putting up a lock on the main gate of the house on 6-2-1947?
3. Whether the plaintiffs were entitled to the permanent injunction prayed for?
4. To what relief are the plaintiffs entitled?
4. On all the above issues the learned Civil Judge gave his finding in favour of the plaintiffs. He decided the question of the ownership of the plaintiffs on the basis of the long possession proved by them and consequently gave a declaration prayed for and also gave an injunction against the defendants not to obstruct the plaintiffs from going in and coming out of the house, for using the room in dispute and also gave a mandatory injunction to the defendants to unlock the main gate. He also gave a declaration that the parties were jointly entitled to the staircase, Pol and Darichi.
5. The appellants alone out of the five defendants went in appeal and the learned District Judge, Jaipur District who by his judgment dated 30-9-1950 appears to have partly accepted the appeal inasmuch as a modification was made that the mandatory injunction for the opening of the lock of the main gate, be set aside.
This is what I understand from the judgmentof the learned District Judge as although in the beginning of the operative part of the judgment, he has said that the appeal be rejected with costs yet he says that it is modified to this extent that the injunction ordered to be issued would be that the defendant be restrained from putting up the locks and thus debarring the plaintiff from passing through it.
When the learned District Judge considered it proper to set aside a part of the decree of the first court, the proper order should have been 'the appeal is partly allowed and the decree of the first court is modified to this extent that the injunction ordered to be issued will be that the defendant be restrained from putting up the locks and thus debarring the plaintiff from passing through it.' It is the decree of the first court which was modified by the learnedDistrict Judge and not the appeal.
6. The appellants as said in the beginning havecome in appeal to this Court against the above judg-ment and decree of the learned District Judge.
7. I have heard Shri G. C. Kasliwal on behalfof the appellants and Shri P. C. Bhandari on behalf of respondents Nos. 1 and 2. Mr. Kasliwal has very fairly argued that it was not open to him to challenge the finding of fact of the lower courts on the point of possession of the disputed room and the finding with respect to the ownership of theMoth. He however, argued that what has been held by both the lower courts is that the plaintiffs' pos-session over the room in dispute was proved and under those circumstances, the lower courts were not justified in giving a declaration that the plaintiffs were the owners of the disputed room and the joinr owners of the Pol, Darichi and the staircase.
It was argued that all that the lower courtsought to have done was, on their findings, to have declared that the plaintiffs were entitled to the possession of the disputed room and the Moth. I was referred to the statement of one or two witnesses ofthe plaintiffs and specially to the statement of Lachhu P. W. 15 and it was argued that this witness whose evidence is the characteristic of the evidence of other witnesses has only said that he had seen the plaintiffs in possession of the disputed room and that he did not know whether the plaintiffs were the owners or not.
I have also been referred to the statement of the plaintiff Surajbux and it was argued that he too was not able to say as to how the plaintiff was the owner of the room in dispute. All that he had said was that he and his ancestors had been in possessionof the room in dispute but he did not know whether the room was constructed by his ancestors or was purchased from somebody else.
8. On behalf of the respondents it was argued by Shri Bhandari that in cases of ancestral property it is often very difficult to find documentary evidenceof ownership and that the ownership is to be presumed by long possession. In the present case the plaintiffs long possession has been proved and, therefore, there was presumption in their favour that they were the owners of the property. If in the circumstances of this case the appellants wanted to show that the plaintiffs were not the owners and that they or somebody else was the owner it was for them to have displaced the presumption whicharose from the long possession of the plaintiffs.
Mr. Bhandari also argued that from the fact that the plaintiffs were the exclusive owners of the disputed room and the Pol, Darichi and Nal were necessary for the enjoyment of the disputed room, the lower courts were perfectly justified in holding that the parties were the joint owners of the Pol, Darichi and the staircase.
9. Mr. Bhandari referred to a ruling of their Lordships of the Privy Council in the case of Ismail Ariff v. Mahomed Ghous, ILR 20 Cal 834 (A), in which their Lordships held that
'lawful possession of land is sufficient evidence of right as owner, as against a person who has no title whatever, and who is a mere trespasser. The former can obtain a declaratory decree, and an injunction restraining the wrong-doer.'
10. I have considered the arguments of both the learned counsel. I may say at the out-set that Lakshmi Narain defendant has admitted the plaintiffs' claim and Mst. Narayani although she contested the suit in the first court yet she did not appeal either in the lower appellate court or in this Court. The appellants are, therefore, the only persons who have continued to contest the plaintiffs' suit up to the present stage. It has been rightly conceded by Mr. Kasliwal on behalf of the appellants that the findings of the lower courts with respect to the possession of the disputed property cannot be interfered with in second appeal.
I have also gone through the relevant evidence in this case and have come to the conclusion that from the evidence in this case no other conclusion regarding the possession of the disputed room and the ownership and the possession of the disputed grain can be arrived at than the one arrived at by 'the lower courts. There was a volume of reliable oral evidence on the record supported by the two documents Ex. P. 3 a rent-note by Phulchand Manakehand in favour of the plaintiffs and Ex. P. 42 a khata of the grain stored in the disputed room to prove the plaintiffs' possession.
The plaintiffs' case was altogether consistent while that of the defendants varied from one point to another. In their written statements, the appellants alleged that the disputed room and the Moth were owned and possessed by the defendants, while at the trial Mohanlal defendant stated that he alone was the owner of the disputed room and the Moth and held exclusive possession over it.
Mst. Narayani said that she alone was the owner of the disputed room and was in its exclusive possession. In trie state of this evidence apart from the fact that Mr. Kasliwal conceded that the finding with respect to possession in this case could not be interfered with in second appeal I am in a position to come to an independent finding with respect to possession.
11. The only argument that remains to be examined is whether in the state of evidence in this case, declaration with respect to ownership of the disputed room and joint ownership with respect to the staircase, pol and the darichi could be given. So far as the grain is concerned, by documentary and oral evidence, the ownership thereof has been proved of the plaintiffs. So far as the disputed room is concerned, there is no documentary evidence to show that it belonged to the plaintiffs.
The plaintiffs, however, stated that the said room had been in possession of their ancestors and had come to their hands from their fore-fathers. It was also stated by Ladhuram who is elder of the two plaintiffs and is the father of plaintiff No. 2 that since he attained consciousness he had seen the possession of his ancestors over the disputed room andafter his ancestors, he himself had been in exclusive possession thereof.
The plaintiffs' witnesses who numbered about a dozen and a half and some of whom who are neighbours, some of whom tenants and others those who deal with the plaintiffs in grain business have all deposed that they had seen the plaintiffs in possession of the room in dispute for at least 20 to 25 years. The long possession of the plaintiffs is, therefore, fully proved and although there is no documentary evidence on the record to prove the ownership of the plaintiffs of the disputed room, yet presumption arises in their favour under section 110 of the Indian Evidence Act that they are the owners of the disputed property.
The appellants have not been able to prove that they were the owners of the room in dispute. The appellants no doubt said that they inherited the disputed room from one Kishenlal, but they have hopelessly failed to prove that they were the legal representatives of Kishenlal. They have not been able to establish how they were in Kishenlal's family. They are, therefore, mere trespassers. They had no preferential right to the plaintiffs whose possession has been well established.
It was argued that the plaintiffs had admitted that the whole house belonged to Kishenlal and therefore, the disputed property should be taken to be Kishenlal's property. In the first instance, the legal representatives of Kishenlal Mst. Narayani halfheartedly contested the suit and did not appeal against the decree of the first court. Then there appears no admission on behalf of the plaintiffs that the disputed room belonged to Kishenlal.
The fact that other portions of the house belonged to Kishenlal would not make Kishenlal the owner of the disputed room. In ILR 20 Cal 834 (A), referred to above, the plaintiff was able only to prove the possession of his predecessors-in-title and it was held by their Lordships that the possession of the plaintiff was sufficient evidence of title as owner against the defendant. Their Lordships therefore, gave the plaintiff a decree declaring the plaintiff's title to the land in dispute in that case.
To my mind the declaration given to the plaintiffs with respect to the disputed room was perfectly justified and I have no reason to interfere with the decree of the lower courts so far as it relates to the declaration of ownership of the disputed room and the Moth in dispute. It is also quite clear that for the enjoyment of the disputed room, the plaintiffs had a right to use the pol, darichi and the stair-case. The defendants were, therefore, rightly restrained from interfering with the use and enjoyment of the disputed room by the plaintiffs.
I, however, do not agree that simply because the use of pol and staircase etc., was necessary for the enjoyment of the disputed room, the pol and staircase etc., were the joint property of the parties. I am, therefore, unable to maintain that part of the decree of the lower courts by which it has been declared that the parties are the joint owners of the pol, darichi and the staircase. Simply because one of the parties is the owner of a part of the house an inference cannot be drawn that that party is the joint owner of that property which is necessary for the use of his portion. Of course the legitimate use and enjoyment of that property for the enjoyment of the portion of which he is the owner cannot be obstructed.
12. The appeal is partly allowed and the decree of the lower appellate court is modified to this extent that the declaration with respect to the joint ownership of the staircase, pol and darichi is set aside. In other respects the decree of the lowerappellate court is confirmed. In the circumstancesof the case the plaintiff respondents shall get 3/4thof their costs throughout from the appellants.