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Hardut Ray Chamaria and Co. and ors. Vs. Ujir Shaikh and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1928Cal765,117Ind.Cas.606
AppellantHardut Ray Chamaria and Co. and ors.
RespondentUjir Shaikh and ors.
Cases ReferredJohn Clark v. G.H.D. Elphinstone
Excerpt:
- .....his title is entitled to rely upon the presumption that he was in possession and second, that in finding possession in favour of a trespasser the possession that is to be found in his favour is to be united to the particular portion of the land in respect of which he has succeeded in proving his possession.5. as regards the first of these propositions relance is placed upon the decision in the case of john clark v. g.h.d. elphinstone, l.r. house of lords [1881] 6 a.c. 164, in which it has bean laid down that, with regard to land lying within defined boundaries the rule to apply on the question of possession is to assume that the acts of possession done upon one part of the land should be taken as showing possession of the person doing such acts in respect of the whole land. there can.....
Judgment:

Mukherji, J.

1. These tour appeals arise out of as many suits that were instituted by the plaintiffs for declaration of title and recovery of possession after demolition of certain huts which stand on the land. The Courts below have found is favour of the plaintiffs on the question of title but being of opinion that the plaintiffs have failed to have their possession within 12 years before suit have dismissed the said suits.

2. The arguments that have been advanced before us on behalf of the plaintiffs who are the appellants in these appeals are directed against the finding of the Subordinate Judge to the effect that the plaintiffs have failed to prove their possession within 12 years and against the reasoning upon which that finding is based. Beading the judgment of the Subordinate Judge it would appear that he, after discussion of a very large number of decisions upon Article 142 and Article 144, Lim. Act, came to the conclusion that in the present suits it was Article 142, that was applicable and that the plaintiffs were to prove their possession of the particular plots with which the suits ware concerned within 12 years before the institution thereof. He then proceeds to take into consideration the evidence in the ease and records two observations which I think it better to quote in his own words. He says thus:

It was argued that the defence evidence of possession for more than 12 years is quite unsatisfactory, but the weakness of defendant's evidence cannot go to make the plaintiff's evidence strong. It is true that the evidence regarding possession for more than 12 years is not vary satisfactory.

3. He says also:

Event in spite of the unsatisfactory nature of defendant's evidence I must say that it is far hotter, than that of plaintiff's evidence and on comparison the defendant's evidence becomes acceptable.

4. As regards these two observations upon which the learned Subordinate Judge based his final conclusion to the effect that the plaintiffs had failed to prove their possession within 12 years before suit, what is said is substance on behalf of the appellants is that the Subordinate Judge omitted to keep in view two important principles that should be borne in mind in determining the question of possession in a case of this nature. These two principles are first, that where evidence of possession on either side is not satisfactory or not quite satisfactory the party who has succeeded in proving his title is entitled to rely upon the presumption that he was in possession and second, that in finding possession in favour of a trespasser the possession that is to be found in his favour is to be United to the particular portion of the land in respect of which he has succeeded in proving his possession.

5. As regards the first of these propositions relance is placed upon the decision in the case of John Clark v. G.H.D. Elphinstone, L.R. House of Lords [1881] 6 A.C. 164, in which it has bean laid down that, with regard to land lying within defined boundaries the rule to apply on the question of possession is to assume that the acts of possession done upon one part of the land should be taken as showing possession of the person doing such acts in respect of the whole land. There can possibly be no dispute whatsoever as regards the correctness of this proposition. But in a case in which the plaintiff alleged that the lands are capable of being possessed by the exercise of acts of possession and where, as here, it is also alleged that the possession that was exercised was by receiving rents from the tenants who were actually in occupation of the land, to such a case this presumption will hardly apply until and unless the plaintiff has succeeded in showing that he has been in possession by realization rent from tenants who are actually in occupation of at least a part of the land. This is not a case in which it was alleged on behalf of the plaintiffs that the land was waste or incapable of being possessed or that it was khas patit land of the plaintiffs. The definite case that was set up was that there were tenants on the land from whom rents use to be realized and both the Courts below have upon the evidence refused to accept that case as established. They have referred to the fact that the collection papers etc., have not been produced and have decreed that the evidence brought forward for the purpose of proving that the plaintiffs' tenants were in occupation of the land was not satisfactory. It would not, in our opinion, be right to proceed upon any presumption of the character mentioned above in a case where actual and not mere constructive possession was the case that was put forward on behalf of the plaintiffs. It has been argued in this connexion that the presumption that should be relied upon is that possession follow title. That undoubtedly is a maxim that has got sometimes to be applied. It should, however, be remembered that the maxim does not mean that because a person has title to some property therefore necessarily he is in possession of it. What it actually meant is that if at one time a man with title was in possession of property the law allows the presumption that possession continued. In this particular case as far as can be made out from the finding of the Courts below, it does not appear that the plaintiffs have succeeded in establishing that at any point of time they were in possession. Indeed, there was no statement in the plaint as to when the plaintiffs were dispossessed and no attempt was made in the evidence to show that at any particular time the plaintiffs were dispossessed. We are accordingly of opinion that the appellants are not entitled to rely upon the presumption of the description mentioned above and that the first of these contentions must necessarily fail.

6. As regards the question whether the possession of the trespasser should be taken as being possession of a particular plot of land in respect of which he has succeeded in proving that possession there can hardly be any dispute. But before the defendant can be called upon to show that he was in possession the plaintiff in a case under Article 142, Lim. Act, will have to prove his possession within 12 years before suit. Upon the findings of the Courts below the plaintiffs have failed in this respect.

7. Turning now to the facts that have been found in the present case in disproof of the plaintiff's possession within 12 years before suit it is necessary to refer to the arguments that have been advanced before us on behalf of the appellants. It has been said that between Abdul Razak who is said to be the landlord under whom the defendants claim to hold these lands and the plaintiffs there was a previous litigation being Title Suit 71 of 1921 in which Ablul Razak was unsuccessful is recovery of possession from the plaintiff's in respect of a part of the plot of 3 bighas of land to which the bits of land involved the present suits appertain. It is also said that some rent suit or rent suits instituted by Abdul Razak against some of the tenants occupying some lands out of the plot were either dismissed or withdrawn. It has bean further brought to our notice that a portion of the land was some time in the year 1916 made over by one of the plaintiffs to the Municipality, and our. attention has also been drawn to the fact that in the partition that took place between the plaintiffs themselves this plot of land was reserved as ejmali and was not partitioned, the object being that it would thereafter be used for the purpose of excavating a tank for the use of the public. These facts even if they have all been established though it must be said with regard to some of them that they have not been established in the opinion of the Courts below, specially as regards the land that had been made over to the Municipality being part of this land, all these facts would not be decisive of actual possession in respect of any part of the lands which form the subject matter of these suits. This a matter which the plaintiffs had to prove and which in the opinion of the Courts below they have failed to prove. The finding of both the Courts below as to why the land was not partitioned but was kept ejmali at the time of the partition is that none of the individual cosharers liked to get the land in respect of which, the cosharers were really out of possession. That again is a finding of fact with which we cannot interfere in second appeal. There are other matters referred to in the judgment of the learned Munaif against the plaintiffs' case as to possession, e.g., evidence of the supervisor of the Garden Reach Municipality, the inference to be drawn from the non-examination of the Partition Commissioner, etc., and although they have not been repeated in the judgment of the Subordinate Judge we may take it that the Subordinate Judge intended to affirm those findings as his was a judgment of affirmance. We are of opinion that on the whole the finding on the question of plaintiff's possession at which the Courts below have arrived need not be disturbed in those appeals.

8. The appeals accordingly are dismissed with costs.

Bose, J.

9. I agree.


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