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J.C. Galstaun Vs. Profulla Kumar De and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal634
AppellantJ.C. Galstaun
RespondentProfulla Kumar De and ors.
Cases ReferredJones v. Chapman
Excerpt:
- .....3. the appellant before us has sought in this appeal to establish his title to the entire sixteen annas share of the property acquired under the land acquisition, act and has laid claim to rs. 10,122-6-4 the entire amount of the compensation money, as awarded to him by the land acquisition collector, for the acquisition of the property.2. the question of title to the property acquired, as also the question of possession of the same arise for consideration in determining the rights of parties to the compensation money. so far as the question of title goes, it is not disputed that the property originally belonged to one yusuf ostagar. the subsequent devolution of the property after the death of yusuf ostagar has been related in two different ways. according to the respondents, who.....
Judgment:

Guha, J.

1. This appeal is directed against the decision of the learned President of the Calcutta Improvement Tribunal, dated 10th March 1928, apportioning money awarded to two different sets of claimants to the same. Claimant No. 1, Mr. J. C. Galstaun, appellant in this Court, was awarded by the Land Acquisition Collector, the whole amount of compensation in regard to premises No. 72 Karaya Road, Calcutta, which was acquired compulsorily, under the provisions of the Land Acquisition Act. On a reference made under Sections 18 and 19, Land Acquisition Act, from the award of the Collector, by the respondents in this appeal, who are described in the proceedings before us as ' the claimant No. 2,' the award of the Collector made on 11th May 1927, in favour of claimant No. 1, has been modified, and the compensation money has been apportioned by the tribunal between claimants Nos. 1 and 2, in the proportion of 1 to 3. The appellant before us has sought in this appeal to establish his title to the entire sixteen annas share of the property acquired under the Land Acquisition, Act and has laid claim to Rs. 10,122-6-4 the entire amount of the compensation money, as awarded to him by the Land Acquisition Collector, for the acquisition of the property.

2. The question of title to the property acquired, as also the question of possession of the same arise for consideration in determining the rights of parties to the compensation money. So far as the question of title goes, it is not disputed that the property originally belonged to one Yusuf Ostagar. The subsequent devolution of the property after the death of Yusuf Ostagar has been related in two different ways. According to the respondents, who contested the Collector's award, which went against them, after Yusuf's death the title to the property in question vested in his sister Jotun Bewa and his widow Anar Bibi, Jotun having inherited a twelve annas share of the same, the remaining four annas having gone to the widow, Anar Bibi. Jotun's twelve annas share was, in course of time, inherited by her daughter, Anar Bewa. It is necessary to mention that materials before us go to show that the fact that Jotun was the sister of Yusuf was disputed in 1886, by Anar Bibi, in a letter-of-administration ease, and the decision of the District Judge in the contested proceeding arrived at on 24th June 1886, was that Jotun was the sister of Yusuf and was therefore entitled to letters-of-administration being the chief heir.' The relationship of Jotun Bewa to Yusuf Ostagar as his sister, and her title to the property as such must be taken to have been established, and it cannot be allowed to be challenged by a person in the position of the appellant before us, who claims through Anar Bibi (who contested Jotun Bewa's right to a grant of letters-of-administration, as Yusuf Ostagar's sister : see Kali Pada De v. Dwija Pada Das . After the death of Jotun, her daughter Anar Bewa inherited her share of Jotun's property; and on 28th August 1892 Anar Bewa conveyed her interest in the property to Ishan Chandra Dey.

3. This purchase by Ishan was on behalf of four brothers, the members of a Hindu joint family one of whom is Tarani Kanta Dey, one of the respondents in this appeal, the respondents as between themselves representing the interest of the four brothers in whoso behalf the purchase of the property was made by Ishan Chandra Dey. There is a statement in the conveyance executed by Anar Bewa, which is Ex. 2 in this case, that her mother Jotun was granted a certificate under Act 27, in respect of twelve annas share of Yusuf Ostagar's property. The reference to Act 27 must be taken to be under a misapprehension, as there was obviously a grant of letters-of-administration to Jatun Bewa, as evidenced by the decision of the District Judge to which reference has already been made and all that was perhaps indicated by reference to Act 27 was that Jotun Bowa took out letters-of-administration in respect of the properties of Yusuf Ostagar and had also taken out a certificate for collection of debts, under Act 27 of 1860 which was in force when Jotun Bewa inherited her brother Yusuf's properties. By the conveyance of 1892, 12 annas share of the property in question was sold to Ishan Chandra Dey. Before that on 31st July 1886, Anar Bibi, the widow of Yusuf Ostagar, purported to convey a 16 annas interest in the property to one Meher Ulla and Meher Ulla thereafter conveyed his interest in the property to Hridoy Chandra Dey, on 23rd August 1898. The nature of the purchase by Hridoy, through whom claimant No. 1, appellant in this Court, claims a 16 annas share in the property in question was described by Ishan Chandra De in an affidavit Ex. N in this case, sworn and filed by him in the original side of this Court, on 15th June 1904, in the manner following:

I say that premises No. 74/1 Kuria Road, 72 Kuria, Road 61 and 61/1 Kuria Road and 59 Kuria Road are my properties and was purchased benami in the name of Hridoy Chandra Dey under the following circumstances: namely, that I purchased the undivided three-fourths share of and in the above premises but before my purchase one Meher Ulla Mundle purchased from Anwar Bibee and others the above properties although they were entitled only to the one-fourth share thereof and had no power to sell the entirety. After the purchase of the said undivided three-fourths share I took possession of the same but the said Meher Ulla Mundle tried to get possession of the same from me and after certain proceedings the said Mehr Ulla Mundle came to a settlement with me and it was subsequently arranged that 1 should pay Rs. 2,000 to the said Meher Ulla Mundle and he would convey all his right, title, interest of and in the said properties to me but as I had no funds then in my hands I asked Hridoy Chandra Dey one of the defendants above named to lend and advance to ma the same but he agreed to do so if I furnish some security for Rs. 2,000, and for Rs. 3,082-06 which was due to the firm of Madhu Sudan Dey-Gopal Chandra Dey by me as balance of certain money borrowed by me from the said firm and at last it was agreed between me and the said Hridoy Chandra Dey that I should purchase the above property from Meher Ulla Mundle in his name and that he should be put into possession of the same but when the said sum of Rs. 8,082-0-6 would be paid to him he would transfer the said properties to me.

4. It should be mentioned in this connexion that the transaction referred to in the affidavit referred to above, appears never to have been completed and on the material before us, it must be taken to be established that Hridoy Chandra Dey and not Ishan Chandra Dey nor any of the members of the joint family whom ho represented in the matter of acquisition of interest in the property in question owned originally by Yusuf Ostagar, had any right, title or interest whatsoever in the share of the property conveyed by Meher Ulla to Hridoy Chandra Dey. In our judgment materials on the record go to prove that a 12 annas share of the property under consideration was purchased by Ishan Chandra Dey and the remaining share of the property originally owned by Yusuf Ostagar, only a four annas share went to Hridoy Chandra Dey. Hridoy's interest was on 19th September 1907, sold by a receiver appointed by this Court on its original side and a sale certificate was granted to the purchaser Mahammad Hossein, on 4th March 1908. This Mahammad Hossein sold his interest to claimant No. 1, the appellant in this Court, on 31st March 1917. In this state of facts, which have been established on evidence adduced by the parties claimant No. 1 the appellant had title to the property in question to the extent of a four annas share only; the 12 annas share was owned by 'claimant No. 2,' the respondents. After the conveyance by Anar Bewa in 1892 of a 12 annas share to Ishan Chandra Dey, the share to which she was legally entitled, there was nothing more than a four annas share left, which could be conveyed and which could come to the appellant by a series of devolutions to which reference has been made above.

5. Coming next to the question of possession the materials on the record present some amount of complexity in view of the fact that each of the contesting parties wanted to assert possession in respect of the entire 16 annas interest of the property and were not prepared to recognise the real title that could under the law and had legally vested in them. The earliest record as to possession of parties is the order recording the name of Hridoy Chandra Dey in regard to a 16 annas interest of the property in question on 2nd October 1902 as purchaser from Meher Ulla, Meher Ulla being mentioned as the purchaser from Anar Bibi, widow of Yusuf Ostagar. The entry in the khasra khatian of 1903-05, prepared by an Assistant Superintendent of Survey, showing that Hridoy Chandra Dey was recorded as the holder of the property in question, and Abdul Rahim and others were ten-ants-at-will under Hridoy is the next item, so far as evidence of possession goes. This entry standing by itself, without further elucidation of facts regarding the nature of Hridoy's possession does not carry matters very far. On 25th January 1906 we find one Ataur Rahman executing a kabuliyat in favour of Ishan Chandra Dey and his brothers including Tarani Kanta Dey, residents of Ramkrishnapur containing definite statements that the recipients of the kabuliat were in possession of the property by settling the same with tenants, that the executant was in possession of some portion of the property and that the kabuliyat was executed on demand made for the same. It has not been made out by any evidence that the recipients of the kabuliyat were not Tarani Kanta Deyor the predocessors-in-interest of the other respondents in this appeal nor can it be asserted that for want of registration this document was not evidence of the fact of possession at the time mentioned in the document. Want of registration cannot prevent the use of the kabuliyat, which is Ex. 10 in this case, for a collateral purpose. The unregistered kabuliyat may not be admissible to prove the tenancy itself, but the recitals contained therein might nevertheless be referred to as explaining the nature and character of the possession of the property in question, so far as the respondents in this appeal were concerned: see Varada v. Jeeverathnammal A.I.R. 1919 P.C. 44 and Jagannath Marwari v. Chandani Bibi A.I.R. 1921 Cal. 647.

6. The next item of evidence on the question of possession so far as the appellant was concerned, is that afforded by the mutation proceedings in the years 1908' and 1910. On 23rd September 1908 an application for the mutation of the name of Mahammad Hossein appears to have been struck off for non-appearance of the applicant. This was followed by an order passed on 15th August 1910, for registration of the name of Mahammad Hossein as the auction-purchaser at a sale held by this Court in its original jurisdiction. On 21st August 1910, Ataur Rahman executed a registered kabuliyat in favour of the respondent Tarani Kanta De, and the predecessors-in-interest of the other respondents, as owners. The rate bill of the Corporation of Calcutta in respect of the property in question, dated 1st October 1912, however shows Mahammad Hossein to be the owner. The respondents have shown collection of rent by them or their predecessors-in-title from the tenant on the land for certain periods in the years 1914 to 1916, and for one period in the year 1917. In 1917, on 31st March Mahammad Hossoin executed a kabala in respect of his interest in the property to the appellant, after which there was a suit for ejectment instituted by the appellant against Ataur Rahman, the tenant on the property. The defence of the tenant was a denial of the relationship of landlord and tenant, the tenant claiming to hold under the respondents or their predecessors-in-title. There was a decree for ejectment, and the tenant subsequently attorned to the appellant, by way of compromise.

7. The appellant has placed on record an extract from a rent bill book in respect of 72 Karaya Road, for the period commencing from April 1919 to December 1924, which shows the extraordinary state of things that out of Rs. 171 due on account of rent, Rs. 161 was remitted as special allowance, and only Rs. 10 was the amount realized from the tenant. It is useless to comment on evidence afforded by a document like the rent bill book, which is Ex. E (2) in the case. To say the least, it casts a very reasonable doubt upon the nature of the possession exercised by the appellant and his predecessors-in-title so far as the property in question was concerned. In regard to the collection of rent by the respondent or predecessors-in-title, the ambiguity attaching to the counterfoils of rent receipts in view of the mention of the holding 'No, 103,' is an ambiguity of such a description, which in our judgment, may be allowed to be explained, and which has sufficiently been explained by materials placed before us. We have no hesitation in coming to the conclusion that the collection of rent as shown by the counterfoils of rent receipts was in respect of No. 72 Karaya Road, and the number of the holding in the Municipal Register was 103, which has subsequently been changed to 95. In our opinion there is nothing contained in Section 93, Evidence Act, which precludes evidence to be given for the purpose of explaining an ambiguity of the present description, if there was any ambiguity in substance. The evidence so far as it goes bearing upon the question of possession appears to support the respondents bearing in mind that the mutation proceedings, and entries in rent bills of the Municipality, cannot afford sufficient guidance in the matter of actual possession of a -property, in regard to which there was at least one registered document in the shape of a kabuliyat, evidencing actual possession by virtue of attornment by the tenant on the property, to the respondents or their redecessors-in-title, for a series of years, an attornment which was followed up by payment of rent by the person who is admittedly the tenant on the property, but whom none of the parties has considered it safe to examine as a witness.

8. It is worth mentioning in this connexion that attempt was made before the trial Court, on the part of the appellant, to make out that the title acquired by virtue of the purchase made by Ishan Chandra Dey from Anar Bewa in the year 1892, had been extinguished by adverse possession on the part of the appellant and his predecessors-in-title. In our judgment, the case of adverse possession so as to defeat the title of the respondents before us has not been made out in any way whatsoever. There is no evidence of any ouster of adverse possession as contemplated by law; nor any assertion of hostile title with notice thereof, so far as the respondents' interest based upon a title to a 12 annas share of the property in question was concerned. In view of the nature of the title found to reside in the parties, and regard being had to the nature of the possession exercised or sought to be exercised by the parties concerned, at different periods, of time, to which reference has been made above, the present case is pre-eminently one in which the rule that whore possession in fact is undetermined, possession in law follows the right to possess, or in other words, the rule that possession follows title, should be held to be applicable. As mentioned in a well-known treatise on possession:

it had already been said by Littleton that 'where two be in one house or other tenements together, to claim the said lands and tenements, and the one claimeth by one title, and the other by another title the law shall adjudge him in possession that hath right to have the possession of the same tenements: see Pollock and Wright on possession, p.24.

9. The dictum of Moule, J, in Jones v. Chapman [1847] 2 Ex. 803 at p. 821 on the same subject is a more pointed one:

If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is which of these two is in actual possession, I answer, 'the person who has the title is in actual possession'.

10. Applying this rule to the present case, it would seem that in view of the respective title of the parties concerned, there could not he any actual possession in the eye of the law to the extent of more than 12 annas share in the case of the respondents or their predecessors-in-in-; terest; and in the same way, the appellant's possession or the assertion of right to possession, on the part of his predecessors-in-interest, could not on any account be in respect of anything more than a 4 annas share of the property in question. Furthermore if looked at from another standpoint, the possession or assertion of right to possession in the case before us, or, to he more precise, the apparently exclusive possession of property, which must on the evidence he treated as joint property, by two tenants-in-common, must he referred to the title in virtue of which it may have been lawfully enjoyed. The possession of the parties concerned could be referred to a right consistent only with subsistence of an ownership in regard to the two different shares to which the parties have succeeded in making out their respective titles.

11. In the above view of the case before us, the decision of the learned President of the Calcutta Improvement Tribunal, that the extent of the interest which passed to the appellant before us, by virtue of his purchase was only a 4 annas share of the property acquired under the provisions of the Land Acquisition Act, and that the compensation money should therefore be apportioned between the appellant and the respondents in the ratio of 1 to 3 the former being entitled to one-fourth and the latter to three-fourths, must be affirmed.

12. In the result, the appeal fails and is dismissed. Respondents 1 (a) and 1 (b) are entitled to their costs in this appeal. The hearing fee is assessed at five gold mohurs.

Mukerji, J.

13. I agree.


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