1. This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, Asansol, District Burdwan.
2. Briefly stated, the plaintiff's case is that the disputed property belonged to Kamaruddin Molla who sold the same to plaintiff's father on 6-3-1933. On 17-11-1938 defendant 1 purchased the disputed property in T. Execution Case No. 103 of 1938 against the heirs of Kamaruddin. The plaintiff having being dispossessed on 8-1-1939 by defendant 1 at the time of taking possession in the said execution case, the plaintiff filed an application under Order 21, Rule 100, Civil P.C., which was dismissed on 13-5-1939. The plaintiff accordingly filed the suit for declaration of the plaintiff's nishkar right in the suit land and for khas possession on demolition of the huts erected by defendant and for permanent injunction.
3. The suit was contested by defendant 1 mainly on the ground that the plaintiff's kobala was a benami transaction, that the plaintiff or his father had no possession, that the Province of Bengal who had got the disputed land sold for non-payment of court-fees and at which defendant 1 purchased, was a necessary party.
4. The trial Court held that the property belonged to Enayet Ali, father of Komoraddi, that the plaintiff's father's purchase from Kamaruddin was not a benami one, and this purchase being prior to that of defendant 1 the latter did not acquire any title by his auction purchase of the interest of Kamaruddin's heirs, the judgment-debtor having no saleable interest at the time; that the plaintiff and his father were in exclusive possession, the other heirs of Enayetulla did not claim any title or possession, that the plaintiff was dispossessed on 8-1-1939; that defendant 1 was estopped from challenging the exclusive title and possession to the plaintiff. In the result the plaintiff's suit was decreed in full.
5. Defendant 1 preferred an appeal.
6. The lower appellate Court found that the disputed property belonged to Enayetulla, and on Enayetulla's death, devolved on his son Kamaruddin, his widow Nabijan and his daughter Shajadi; that the shares of Nabijan and Shajadi were not lost by adverse possession, the possession of Kamaruddin was possession on behalf of Nabijan and Shajadi, Kamaruddin's share which was 7/l2th had passed to the plaintiff's father by his purchase in 1933 which was not a benami one, that as the plaintiff was suing for khas possession, he can succeed only on the strength of his title, that no question of estoppel arose. In the result, the appeal was allowed in part, the plaintiff's title, to the extent of 7/l2th share of the suit land was declared and the plaintiff was directed to get joint possession with the defendant, the rest of the players were disallowed. Plaintiff was awarded 7/12th share of the costs of the suit, defendant 1 was allowed 5/l2th cost of the appeal of which was to be set up. (sic)
7. The plaintiff has appealed to this Court.
8. Mr. Bankim Chandra Mukherjee appearing on behalf of the appellant contends that the lower appellate Court has made a new case of title being with Enayetulla. He next contends that as the plaintiff and his father were in possession of the whole of the disputed lands for a long time the plaintiff is entitled to a decree for the whole even though his title extends to 7/12th share, the defendant being a trespasser. He further contends that the suit being one under Order 21, Rule 103, Civil P.C., he can succeed on proof of his possession at the date of alleged dispossession as the dispossessor was a mere trespasser, the plaintiff having some title.
9. I shall deal seriatim with these contentions.
10. As regards the first contention, Mr. Mukherji refers to a passage in the judgment of the trial Court to the following effect :
from the pleadings of the parties it is almost an admitted ease that the disputed property did belong to Kamaruddin Molla.
I do not think, the Munsif was right in his observation. Defendant 1 traversed the title and possession of the plaintiff and of Kamaruddin. An issue was joined on the following terms 'Has the plaintiff any right, title or interest in the disputed properties?' In Jagadish Narain v. Said Ahmed Khan ('46) 50 C.W.N. 477 their Lordships of the Judicial Committee held that a plaintiff suing in ejectment can only succeed on the strength of his own title. There is no obligation on. the defendant to plead possible defects in that title. It is sufficient that in the written statement the plaintiff's title is denied. This contention therefore fails.
11. The second contention, in my opinion, is also not sustainable, It is opposed to the settled view of our Court. Mr. Mukherji has relied on the decisions in Banku Behari v. Raj Chandra ('10) 14 C.W.N. 141, Satish Chandra v. Madan Mohan : AIR1931Cal483 , Kiron Chandra v. Prasonna Kumar : AIR1934Cal561 and has argued that as his vendor Kamaruddin obtained exclusive possession of the whole and as the plaintiff's father and then the plaintiff were in such possession, though short of the statutory period of 12 years, nevertheless he can successfully maintain an ejectment against defendant 1 who is a mere trespasser.
12. In the present case, the plaintiff prayed for declaration of his exclusive title and for recovery of khas possession on an allegation of dispossession and for demolition of the structures erected by defendant 1 after he took possession. In my opinion, the plaintiff in the suit as framed, can succeed only on the strength of his title and not on the weakness of the defence. I shall now deal with the above cases.
13. In Banku Behari v. Raj Chandra ('10) 14 C.W.N. 141, the plaintiffs had failed to prove the mokarari title set up by them, but had proved their tenancy right by possession on payment of rent. This was held to be sufficient to maintain a suit for recovery of possession against the defendants who were trespassers. It is apparent that the title proved by the plaintiffs was exclusive and entitled them to possess the whole of the land. The general observation made at page 143 must be read in the light of the facts of the case. In Satish Chandra v. Madan Mohan : AIR1931Cal483 which was decided by Page J. sitting singly, His Lordship held that the right of the plaintiff to eject the defendants did not rest merely on bare and unexplained prior possession but that the possession of the plaintiff was by virtue of a title derived from the maliks of the lands which gave them a right for possession. His Lordship expressly held that it was not necessary for him to consider whether a cosharer can eject trespasser from the entirety of the premises. The wide statement of the law in the early part of the judgment was obiter. The case in Kiron Chandra v. Prasonna Kumar : AIR1934Cal561 does not really assist the appellant. After referring to the decisions of the different High Courts their Lordships (Malik and Jack JJ.) observed:
So far as this High Court is concerned, it is well settled by decisions which are binding upon us that mere previous possession will not entitle a plaintiff to a decree for recovery of possession except in a suit under Section 9, Specific Belief Act.
Referring to the decisions in Banku Behari v. Raj Chandra ('10) 14 C.W.N. 141, Satish Chandra v. Madan Mohan : AIR1931Cal483 which have been relied on by Mr. Mukerji, their Lordships observed that in all these cases previous peaceful possession for a long time gave rise to an inference of title in the plaintiff as against a trespasser and entitled him to a decree for possession against a trespasser who had no right whatsoever to possession. In the present case, the finding of the Court of appeal below is that the possession of Komoruddi was not exclusive but was on behalf of himself and his cosharers viz., his mother and sister. The view taken in the case last cited has been applied to the case of a cosharer seeking reoovery of possession of the whole of the property, in Naresh Chandra v. Hyder Sheikh : AIR1929Cal28 , a decision of D.N. Mitter J. sitting singly which was affirmed in Letters Patent Appeal No. 104 of 1928. The view taken by Mitter J. was re-affirmed in Joygopal Sinha v. Probodh Chandra : AIR1935Cal646 which was also a case of cosharer seeking to recover possession of the whole. At page 83, Nasim Ali J. observed as follows:
In the second place, Mt. Sundar v. Parbati ('89) 16 I.A. 186 is not an authority for the proposition that where a person brings a suit for ejecting a trespasser and is not defending hi3 possession, he can eject the trespasser from the whole of the land. If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under Section 9, Specific Belief Act, he can only succeed on the strength of his own title.
Henderson J. who concurred in the decision went on to state that:
In the second place, the previous possession of the plaintiffs was merely that of cosharer and it is quiteingless to say that they we in possession of a share meangreater than that to which they were entitled.
The second contention therefore fails. As regards the third contention, I have pointed out that the suit is not strictly in terms of Order 21, Rule 103, Civil P.C. But assuming that it is so, I think the plain words of the rule negative this contention. A suit under the Rule is expressed to be a suit 'to establish the right which he (plaintiff) claims to the present possession of the property.' It is a suit based on the right to possession and not on mere possession at the relevant date. It is true that in the summary proceedings under 0. 21, Rules 98, 99, 101, Civil P.C., the inquiry is directed to question of possession but the scope of the suit under Rule 103 is much wider. This view is fully supported by the decisions in Unni Moidin v. Pecker 8 A.I.R. 1921 Mad. 317 and Abdul Hakim v. Mangal Chand 25 A.I.R. 1938 Pat. 433. It has been held in Muralidhar v. Jainti Prasad : AIR1932All703 that a suit under Order 21, Rule 103, Civil P.C., is not akin to a suit under Section 9, Specific Relief Act, and the plaintiffs in a suit under Order 21, Rule 103, Civil P.C., cannot succeed by merely showing that they were in possession and had been dispossessed, they must establish their right to possession on the assumption that they were not in possession on the date of the order under Rules 98, 99, 101. This contention also fails.
14. In the above view, it is not necessary to deal with the contention raised by Mr. Jagadish Chandra Ghose appearing for the respondent that the Province of Bengal who was in substance the decree-holder at whose instance the sale at which defendant 1 purchased was held, was a necessary party to the suit under Order 21, Rule 103, Civil P.C. The appeal accordingly fails and must be dismissed with coats.