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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 53 of 155)
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action in ejectment by demolition of the buildings erected by the defend-
ants ?

"(2) For how long have the defendants been in actual possession of
the land, and what has been the nature of such possession [544] as
against the zemindar from whom the plaintiff is the lease-holder"?

It has been contended before the Full Bench that this order of remand
was wholly unnecessary, because the findings of fact at which the learned

343



1891

MARCH 18,

APPEL-

LATE

GlVIL.

*3 * 837 =
** &.W.N.
(1881) 19 6.



13 All. 55



INDIAN DECISIONS, NEW SERIES



[Yol.



APPEL-
LATE
.CIVIL.

13 A 537 =
11 A.W.N.
(1801) 196.



District Judge bad arrived were sufficient to dispose of the rights of the
parties, so as to render them unameuable to judical interference by this
Court as a Court of second appeal under s. 584 of the Code of Civil Pro-
cedure, and in support of this contention certain authorities were cited to
which special reference is not necessary, because they are familiar.

Upon the remand order which I thus made, the case went back to
the lower appellate Court, at which time the presiding officer was another
Judge. Mr. Fox was then officiating in that appointment. That learned
Judge, by his finding, dated the I7ch August 1889, sent up the case again,
and among those findings is the following passage :

"The defendants' possession is not alleged to be permissive; such
as it is, it ia adverse to the zemindar and his lessee the plaintiff. I find
that the site of the mosque building proper (vide plan) has been in defendants'
possession since 1881, and the rest of the land since 1886. I observe
that Mr. Nicholls, though he ' affirmed the appeal,' did not order the
destruction of the mosque building. His judgment is somewhat obscure
on this point. Plaintiff did not appeal respecting the site of the mosque."

Now this finding is the reason, and a necessary reason, why it was
necessary for me sitting here as a Judge in second appeal to ascertain
whether or not the learned District Judge had understood the identity of
the land which was in dispute. That was the reason why the remand
order made by me on the 3rd July 1889 was made.

The facts stood thus, that whilst Mr. Nicholls as District Judge
confounded plot No. 38 with the property now in suit, namely, plot
No. 46, and of that plot 1 biswa 7| dhurs, the next District Judge in
dealing with it held that the property on which the [545] mosque stood
and which formed the subject-matter of the litigation had, as in the
quotation which I have given, been in the possession of the defendants at
least since 1881, and the rest of it since 1886.

To the findings thus returned by Mr. Fox neither of the parties to
the litigatiion consented, because I find that both the parties presented
objections under s. 567 of the Code of Civil Procedure to those findings.

Upon this state of things I had to consider the case in the Single
Bench, and I find for the reasons stated in my order of the 17th December
1889, I thought that the case required reference to a Bench consisting of
two Judges. The rules of the Court at that time permitted such refer-
ence, notwithstanding the fact that the single Judge had made an order
of remand.

The case accordingly came on for hearing before the late Mr. Justice
Brodhurst and myself, sitting as Judges of a Division Bench of this
Court consisting of two Judges, and by our order of that date we con-
curred in remanding the case again under s. 566 of the Code of Civil Proce-
dure for clear findings as to the terms of the lease upon which the plaintiff's
suit was based, and, as my judgment in that case shows, for specific
information as to what I said in that judgment with reference to the
issue which was remanded on the former occasion. I said this : " The
object of the issue was to have full information in connection with the
terms of the lease, that is to say, the time when the lease was executed,
the terms on which it was given to the plaintiff, the exact area to which
such lease related, as to whether or not it included the land now in suit,
and other ciroumstances connected with what are called the terms of a
document."



344



YII] WALI AHMAD KHAN V. AJUDHIA KANDU 13 All. 547

The case was accordingly remanded, with the concurrence of the late 1891
Mr. Justice Brodhurst, upon those issues, and, if I remember rightly, the MARCH 18.
explanation of the issues was suggested by him to me.

Upon this issue being remanded, the present learned District Judge, APPEL-
Mr. Penniugtcn, has recorded findings the effect of which is that there LATE
is no proof that the plaintiff ever held any lease form the zemindars ; that CIVIL.
there is no proof that the payment of rent alleged [546] by him in the
plaint was ever made; that there is no proof that he was ever in physical 13 A. 537 =
possession of the land in suit. The learned Judge sums up his finding iu the 11 A.W.N.
penultimate pirsgraph of his order. He says ; "My finding on the issue (1891) 196,
remanded is ihat if they were on oral lease in 1280 Fasli as alleged by
plaintiff (which is doubtful) it included the area of the land now in suit,
but that it was not a lease in propetuity nor for any fixed term, and that
plaintiff can have no claim against defendants on this lease."

This finding, so far as it relates to questions of fact, is in my opinion
a finding binding upon this Court as a Court of second appeal, but it is
nob binding upon this Court over questions of law which arise from it and
that question is a serious one.

It is this. Is there any such thing as possessory title known to the
Indian Law, aud, if it is, where is the authority for such a title ? Such a
title was practically unknown to the Indian Law till the considerations
which required the enactment of s. 15 of Act XIV of 1859 necessitated
that such a title should be recognised, in order to keep the peace
and to prevent parties from ousting persons in possession by force
or fraud. Now this enactment of s. 15 of Act XIV of 1859 has been
the subject of interpretation hy their Lordships of the Privy Council,
and they have held that because possessory 1 title is intended for these
purposes, no such possessory title shall enable the plaiutiff to come into
Court to seek remedy by ouster, unless such claim is brought within six
months as provided by s. 15 of Act XIV 1859. That ruling is in the
case of Wise v. Ameer-un-nissa Khatcon (1).

That case also is an authority for saying that whenever a possessory
title is made the basis of a claim such as this and is brought after the
laps of six months, such a title is not to be listened to, because there
has been too much delay for relying upon such a title.

Another point upon which also their Lordships of the Privy Council
have delivered their judgment is that the ordinary rule of burden of
proof as to ownership is not to be disturbed except under the statutory
provisions as to possessory title to which I have [547] already
referred. Those provisions have now been reproduced as s. 9 of the
Specific Relief Act (I of 1877), but they do not in my opinion alter the
law, for s. 15 of the Limitation Act, (XIV of 1859) was unjuristically
placed in the old Limitation Act, though it deserved a place in an
enactment which related to specific relief. One thing, however, is clear,
that in both these enactments, whether specific relief be regarded as
a subject falling under the category of substantive law or a subject
relating to adjective law, the period of six months is a necessary incident
before any possessory title can be asserted as the basis of an action for
ejectment. This view has been repeatedly adopted by the High Courts
in India, and it is fully supported by the rulings of the Privy Council.

This being so, it is important to consider the date of the suit
which was the 21st March 1887, and then the date of the ouster



A VII-44



(1) 7 I.A, 73.
345



13 All. 548



INDIAN DECISIONS, NEW SERIES



[YoL



1891

MARCH 18.

APPEL-
LATE
CIVIL.

13 A. 537=-
11 A.W.N.
(1891) 196.



by the defendants which, so far as this plot, No. 46 is concerned,
took place some time, according to the plaintiff's own statement, in
1881. The suit was therefore undoubtedly beyond the six months'
period allowed by s. 9 of the Specific Eelief Act.

This being so, the next question to consider is, that, inasmuch as the
possessory title cannot be pleaded as the basis of the action in ejectment,
whether the ordinary rule of law as contained in s. 110 of che Evidence
Act would not apply. In my opinion, under the circumstances of this
case, considering that the ouster from the land now in suit is admitted to
have been so old as 1881, and also in view of the circumstance that the
suit was not instituted until the 21st March 1887, the ordinary presump-
tion of law, that he who is in possession of land owns it, applies, and such
presumption cannot be abrogated by any statement or proof, even of such
facts as that of forcible or fraudulent ouster anterior to six months from
the date of the suit.

The ruling of Asher v. Whitlock (!) has been cited as an authority
for a proposition opposite to the view which I have taken in this case,
but that ruling in my opinion cannot in the first place, abrogate the
statutory provisions of s. 9 of the Specific Relief Act (I of [548] 1877),
nor can it apply to India if the argument is that it applies in a
manner which abrogates the statutory law. The principle recognised
there, is that a forcible or fraudulent ouster by a defendant will not enable
him to shift the burden of proof as to ownership of title on to the wrong
party. That doctrine, so far as it goes, is sound, and has been adopted by
their Lordships of the Privy Council in the case of Sundar v. Parbati (2),
and from that ruling it is not possible for me to differ. I regard
that ruling as represented in the report itself as one which is binding
upon this Court, but that ruling does not apply to the case here.

Here the action, as I said before, was one in ejectment. The broad
effect of the defence is that the plaintiff had no title ; that those under
whom he claims have no title, and that the very lease never existed, and
the finding- of the lower appellate Court is entirely in favour of the
defendants.

I only wish to add a few words as to this order of remand made by
me in the Single Bench on the 3rd July, 1889. That order was made
because I thought, and still think, that Mr. Nicbolls had not understood
the case and that he had therefore confounded che identity of the property
in suit. It was also made because the judgment of the learned Judge was
not in accordance with the requirements of s. 574 of the Code of Civil
Procedure.

Then as to the second remand order, namely, the one made by Mr.
Justice Brodhurst and myself, on the 24th April 1890, I wish to say that
my honorable colleague and myself had fully apprehended the difficulties
of the case when that remand order was made, and that the second remand
was necessary because of the finding of the lower appellate Court being
again inadequate to prove anything other than a possessory title in
the plaintiff. Such a possessory title, as I have said, cannot rest longer
than six months according to s. 9 of the Specific Relief Act. The suit was
instituted after six months of the alleged dispossession; the land was in the
possession of the defendants ever since 1881, and it had been the subject
of litigation between the parties with the result that the plaintiff's stack of
wood [549] waa removed by the Magistrate's order on the 18th July 1886,



(1) L,B. 1 Q.B. 1,



(2) 12 A. 51,



346



YIP WALI AHMAD KHAN V. AJUDHIA KANDU 13 All. 550

and that; the possession of the defendants had, even from that date, 1891
been anything other than tbat obtained by force and fraud, because the MARCH 18,
possession was obtained, under the order of the Magistrate and it was
peaceably obtained, and it was so retained till this suit was brought, and APPEL-
such a suit being later than six months from the ouster alleged in the LATE
plaint could not therefore ba entertained as a possessory suit. CIVIL

I am of opinion that upon this state of things this appeal should '

prevail, tbat the decree of the lower appellate Court should be set aside, 13 A. 537 -
and that the decree of the Court of first instance dismissing the suit 11 A.W.N.
should be restored with coats in all Courts. I would order accordingly. (1891) 196.

EDGE. C. J. My brother Mahmood has given as his reasons, for
the reference of this case to the Full Bench of the whole Court, that it
involved questions of law of great difficulty and importance. Speaking
entirely for myself, I did not consider that there was any question of
law in the case involving the slightest difficulty. This case was heard
before my brother Mahmood and myself on the 21st instant, and at the
rising of the Court it stood adjourned for judgment. On the morning of
the 22nd my brother Mahmood informed me that we differed, and it
appeared that we differed in fact as to the legality of these orders of remand
also as to tha constructions and effect of s. 9 of the Specific Belief Act, and
further as to the right of a person having a title by possession to maintain
a suit of ejectment against a person who was a pure trespasser and had
ejected the person having that possessory title. In my humble judgment
those questions were easy of solution but, inasmuch as there was this
difference, my brother Mahmood wished tha case to be referred to the
Full Bench and I agreed to refer it.

I regret that I should ba unable to follow my brother Mahmood into
many of the matters to which he has alluded this morning in his judgment
many of the considerations inducing him to make the orders of remand,
as those matters were not suggested by either of the orders of remand
which he made, or during the course of the [550] argument in this case,
or until this morning when my brother Mahmood proceeded to deliver
his judgment.

Let us see what this case is. It is a suit brought by one Ajudhia
Kandu, a Hindu, against certain Muhammadans ; and in that suit the
plaintiff alleged that the defendants had wrongfully built upon land that
was in big possession as tenant and had ousted him, and that they had
at a subsequent period thrown out walls and enclosed other portions of
the plaintiff's holding. The plaintiff alleged that he was a tenant of the
zemindars and held under them. The defendants, on the other band, set
up a title in themselves, their case being tbat on the land in dispute their
ancestor had erected a hut or house and had lived in it, and that the
plaintiff never had had possession of any of the lands in suit. Now that
was a very simple case to try. It was a case in which, according to my
view of the law, the plaintiff could rely on proof of a letting by the
zemindars to him, and if he failed to prove such a letting he could rely on
the fact of his possession anterior to that of the defendants and, if he
established that anterior possession, then upon the fact of their wrongful
entry upon the land, they having no lawful right to do so. The question
of the defendant's title was also an easy matter for consideration, and the
plaintiff having proved prima facie title, either as lessee or as a person who
was in recent possession until ousted by the defendants, it was then for
the defendants to prove a title which entitled them to eject the plaintiff
and thus to establish that their entry upon the land was rightful.

347



13 All 551



INDIAN DECISIONS, NEW SERIES



[Yol.



1891 The suit was brought on tha 21st March 1887 in the Court of the

MARCH 18. Munsif of Baliia. It was decided by the Munsif ou the 2aJ September

1887, the Muasif finding against the plaintiff and dismissing the suit.

APPEL- Thereupon the olaintiff , on the ls L . November 1887, appealed to tha Court

LATE of the DisLricS Judge, and in that apoeal he did nob claim demolition of the

ClVIL. masjid, that ia quite plain. He did not claim possession of the land on

whioh the masjtd stood ; tbafc also was plain, and was plain apparently

13 A 537= to my brother Mahmood when he made the first order of remand. The

11 A.W.N. plaintiff did claim in appeal to have possession given to him of the land

(1891) 196. [551] adjoining the misjid, whioh he alleged the defendants had wrongfully

entered upon aad surrounded by a wall after his, the plaintiff's fuel had

been removed from that land.

There]was another point. It is in no way admitted that the defendants
had been in possession of the land with which we have to deal and which
my brother Mahmood in second appeal had fro deal with, that is, the land
adjoining the masjid and on which the plaintiff had shanked his fuel. I say
it is no way admitted that the defendants ware in possession of this land
since 1381. As a matter of fact, the plaintiff's fuel was removed from
those lands, as has been found, under the order of the Magistrate, dated
the 18bh July 1886, and it was subsequently to that removal that the
defendants wrongfully went on the land and enclosed it. The District
Judge on appeal, dealing properly with the subject-matter of appeal which
was before him axid discarding the matter in the suit which was not before
him, namely, the question of the land upon which the masjid stood, confined
his attention to the question as to who was entitled to the land adjoining
the masjid which was ear-marked as the land upon whioh the plaintiff had
stacked his fuel, which stack was ordered to be removed by the order of a
Magistrate on the defendants' complaint that it was adjoining the masjid
and there was danger from its vicinity ; so that, if there was confusion in
this Court, in the Court of first appeal there was no confusion as to the
plot of land whioh was in dispute in appeal between the parties.

Now the District Judge, I must say this in vindication of his judg-
ment, made no confusion as to numbers. There was a reference to several
old papers and maps. The District Judge pointed out that on the old
village maps the boundaries of properties were very carelessly entered, and
what he did confine bis attention fco was, who was entitled to the land
which was ear-marked as the land adjoining the masjid upon which the
plaintiff's stack of fuel had been ?

What took place before him ? The right and title of the zemindars
to dispose of the land in question was not questioned before the District
Judge. It was not disputed and it had never been suggestol before
him, or in this Court until yesterday, that any [552] question was in
issue still as to the right and title of the zemindars to dispose of the land
and put the plaintiff in possession. It was not a point, as I shall show
hereafter, which apparently was present to the mind of my brother Mah-
mood when he made his first or his second order of remand. If it was
present to the mind of my brother Mahmood, it was not one of the reasons
suggested in those orders of remand for making them, nor was it a question
inquired into in those orders of remand.

Lit us see how Mr. Nioholls, the District Judge, dealt with this case.
His finding, so far as it is necessary to refer to it, is as follows :

" I consider it fully proved that the laud claimed was let to plaintiff
by the zemindars who had power so to dispose of it. I consider it fully
proved that, till the order of the Deputy Magistrate to remove the fuel

348



YII]



WALI AHMAD KHAN V. AJUDH1A KANDU



13 All. 534



stack, the plaintiff was stacking bis fuel cm the empty space between
tbe masjid and the house of Durga and Bhikhari, Koeris and I hold it
to be fully proved that as soon as the defendant saw the fuel removed, he
wrongfully enclosed the space between the standing masjid and the houses
of those two Koeris and built a saiban on plaintiff's ground ar d to the
south put up fictitious cattle troughs and tbe like."

Then he goes on, and we know what his de-cree was :

" Eeversing the finding of the lower Court, I decree tbe claim of the
plaintiff in full as regards the demolishing of the walls and recent erections.
The whole of what lies east and south of the masjid as it stood on the
16tb July, 1886 is to be restored to the condition ife was then in. Tbe
appellant generously gives up his money claim for damages and previous
costs. These parts of his claim and appeal stand dismissed."

That was the decree and judgment against which the defendants
appealed here. It was not possible on that appeal to raise any question as
to the masjid or the site on which the masjid stood. That point had not
been gone into by the District Judge, and he had given no decision on that,
because it was not before him. Tbe [553] whole question before this
Court in second appeal was the question whether on those findings of fact
the plaintiff had made out his right to a decree for possession and for
demolition of the walls wrongfully built by the defendants since 1886. It
was not open to the defendants-appellants in second appeal to question
those findings of fact, unless they were in a position to show that there
was no evidence upon which the District Judge oould have come to those
findings and then it would have become a question of law. No such ground
of appeal was put forward, and it was obvious that if any such ground had
been pub forward it would have been a false one. There was evidence
before the District Judge, he refers to it in his judgment, and he finds that
that piece of land was let to the plaintiff by the zemindars and he finds
that it was occupied down to the 18th July, 1886, by the plaintiff stacking his
fuel upon it, and he finds that neither tbe defendants nor any one on their
bebalf ever entered upon that land until the defendants took tbe opportunity
of wrongfully making entry upon it after the passi&g of the Magis-
trate's order for the removal of tbe fuel. We must not let this case be
confused by extraneous matters. It is well to remember that the order
of the Magistrate was not an order dealing with title. It was an order
passed on the complaint of the defendants that by reason of the stacking
of fuel by the plaintiff there was danger to the masjid. The Magistrate
on being satisfied that there was such danger, properly made that order.

Then for the first time on the making of that order the defendants
took the opportunity of encroaching upon their neighbour's grounds. The
defendants appealed to this Court. It was an appeal which could be heard
by a single Judge. I am bound to say that on these findings of fact I
cannot conceive what point of law there was which could be argued in
appeal on behalf of tbe defendants. The findings of facfc were conclusive
on this Court, and on those findings of fact there could be only one answer
in law, and that was judgment for the plaintiff confirming the decree
below with possession. However, my brother Mabmood made an order
of remand. He tells us to-day that that order may have been made
[554] because the Judge below had not complied with the provisions of
8. 574 of the Code of Civil Procedure, and that it may have been made on
the ground that Mr. Nicholls may have been mistaken as to the identity
of the land which was in dispute between the parties. In matters of this
kind it is always unsafe, I am speaking from my own experience, to rely

349



1891
MARCH 18.

APPEL-
LATE;
CIVIL.

13 A. 537 =
11 A.W.N.
(1891) 196.



13 All. 555



INDIAN DECISIONS, NEW SERIES



[Vol.



1891 upon one's. memory as to what was passing through one's mind nearly two
MARCH 18. years before. In order to ascerbain what were the reasons for the remand

and what was the view my brother Mahmood then took as to appeal

APPRL- before him, I may refer to the actual words he used in his order of
LATE remand of the 3rd July, 1889. That order of remand is as follows :

" The plaintiff-respondent oame into Court upon the allegation r,hat he
was the lessee from the zemindar of tho village in which is situate the
13 A. 537= land in suit. The plaintiff's allegation was that in his lease the land was
ilA.W.N. included, and that the defeniants resisted him placing fuel on the land,
(1891) 196. and that, such fuel having baen removed by the order of the Criminal
Co ; jrfr, dated the 18th July, 1886, the defendants took advantage of the
order and raised a wall, claiming the land to form the courtyard of the
mosque situate in immediate vicinity of the land. The ouster is stated to
have occurred between the 28th July, 1866, and the 15fch September, 1886.
The present suit was instituted on the 21sb March, 1887, and it was resisted



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 53 of 155)