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Bany Mistry Vs. Ertaza HosseIn and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal130
AppellantBany Mistry
RespondentErtaza HosseIn and anr.
Cases ReferredWise v. Ameerunnissa Khatoon L.R.
Excerpt:
suit for possession - previous dispossession--limitation--adverse possession--onus. - .....but while we think that the decision of the lower appellate court cannot be sustained, we think also that the plaintiff is entitled to have the suit tried upon the real point in issue,-namely, to which mouza the land in question belongs, to allygunge or hobeebpore; and for that purpose the case must go back to the first court. we are also of opinion that the proprietors of mauza allygunge ought to be made parties to this suit. the munsif should, therefore, issue a notice to them to show cause why they should not be made co-plaintiffs; and in case they refuse, he should make them defendants, so that the point in issue may be determined in their presence as well as in that of their adversaries, the proprietors of hobeebpore. who are already defendants. on their being made.....
Judgment:

Tottenham, J.

1.We think that the judgment of the lower Appellate Court in this case cannot be supported.

2. The question in dispute was, whether the land belonged to the village of Allygunge or that of Hobeebpore. The plaintiff sued to recover it on the ground that it belonged to Allygunge; and that he held it under the proprietors of that Mauza, and for a long time. It, therefore, was incumbent upon him, in our opinion, to prove either that the land in fact belonged to Allygunge, or that he had enjoyed possession of it adversely to the defendants for at least twelve years. The proprietors of Allygunge were not parties to the suit. The proprietors of Hobeebpore were the defendants.

3. The lower Appellate Court found as a fact that the plaintiff had not made out twelve years' adverse possession. The Subordinate Judge, therefore, remanded the case to the Munsif for an enquiry as to which mauza the land belonged. The result was that the Munsif professed himself unable to determine that point. The Subordinate Judge agreed with him that upon the evidence, it was not possible to say to which mauza the land belonged. But it must be observed that, by his remand order, the Subordinate Judge had precluded the parties from adducing evidence on the point which had to be determined. It does not follow, therefore, that if an opportunity of adducing all the evidence available had been given, there might not have been enough to enable both the Munsif and the Subordinate Judge himself to come to a decision upon the point. But the lower Appellate Court apparently thought it immaterial which mauza comprised the land in question, for it thought that it could decide in the plaintiff's favour upon the strength of a decision of a Division Bench of this Court in the case of Kawa Manji v. Khowaz Nussio 5 C.L.R. 278. There it appears to have been held that a plaintiff having once established that he had been in possession and had been dispossessed, his possession was enough to prove his title prima facie, and to throw upon the other side the burden of proving a better title. In this case the Subordinate Judge found that the plaintiff had been in possession, and that he had been dispossessed, and he held, that mere possession was sufficient evidence of title, and it was for the other side to prove a better title. The defendants having failed to prove a better, the Subordinate Judge confirmed the decree of the first Court. But the decision of this Court, to which the lower Appellate Court refers, is not in accordance with the decision of the Privy Council in the case of Wise v. Ameerunnissa Khatoon L.R. 7 I.A. 73. Their Lordships quoted and approved of the observations made in the case before them by the Judges of this Court, to the effect that mere possession would not prove any title, and would not entitle a plaintiff to obtain a decree for recovery of possession excepting under the special Statute which entitles him to recover possession if the suit is brought within a certain time from the date of dispossession. But while we think that the decision of the lower Appellate Court cannot be sustained, we think also that the plaintiff is entitled to have the suit tried upon the real point in issue,-namely, to which mouza the land in question belongs, to Allygunge or Hobeebpore; and for that purpose the case must go back to the first Court. We are also of opinion that the proprietors of Mauza Allygunge ought to be made parties to this suit. The Munsif should, therefore, issue a notice to them to show cause why they should not be made co-plaintiffs; and in case they refuse, he should make them defendants, so that the point in issue may be determined in their presence as well as in that of their adversaries, the proprietors of Hobeebpore. who are already defendants. On their being made parties, the whole case will be re-opened. Costs will abide the result.


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