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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 54 of 155)
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upon the ground that the land in suit did not belong to the samindar of
the village, but formed part of the premises belonging to the mosque in
which the defendants were interested, and. secondly, that the plaintiff
could therefore have no title to the land, and, thirdly, that the defendants'
possession had been older than thepressriptive period, and therefore neither
the plaintiff nor the zemindar could have any title to the land. It was
also pleaded that the lease under which the plaintiff claimed did not
include the laud in suit. The learned Judge of the lower appellate Court
has recorded findings in certain incomplete terms. In the first place, he
says : 'I consider ib fully proved that the zemindars had the right to
dispose of the waste land as they allege they have done. Thare is absolutely
no evidence (the parole evidenca of the defendants is beneath criticism) that
the land in dispute ever formed part of the masjid or of the [555] masjid
precincts. There is evidence, poor in quality, that before the masjid was
built, Zorawar, grandfather of defendant, ht*d a thatched hub on the spot,
but there is no evidence at all that the limits of his site extended an inch
beyond what is now covered by the masjid.' After these observations the
learned Judge goes on to say 'I consider it fully proved that the land
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 stack, the plaintiff was stacking his fuel on
the empty space between the masjid and the house of Darga and Bikhari,
Koeris, and I hold it to be fully proved that as soon as defendant saw
the fuel removed, he wrongfully enclosed the space between the then stand-
ing masjid and the houses of those two Koeris and built a saibon on
plaintiff's ground, and to the south put up fictitious cattle troughs and
the like.' These findings appear to me to be findings of fact which tend
against the defendants, but before disposing of the case finally it is neces-
sary to have clear findings upon the following points :

(1) What are the exacb terms of the lease upon which thn plaintiff
comes into Court, and do those terms entitle the plaintiff to maintain
an action in ejectment by demolition of the buildings erected by the
defendants ?

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

To take the last issue first. There was a clear finding that the
defendants had failed to make out their case that the laud which they
had attempted to prove that their ancestor had occupied was the land




which was in dispute before the District Judge. As to the first issue,
I fail to sea what the terms of the leasa had got to do with this matter.
The finding was, lease or no lease, as a fact that the zemindars had gob
a right to let and put the plaintiff in possession and the plaintiff had
occupied that land up to the 18th of July, 1886. It was not suggested
by the defendants that the [556] plaintiff held a lease which was for-
feited, or that he had been ejected from the land by his landlord. There
was no issue raised which could make it a matter of consideration between
the plaintiff and these defendants what the terms of that lease were.
The leaae may have been void and indefinite, anil it may have been open
to any and every objection on the part of the zemindars, if the zemindars
were defending this suit ; but; I fail to see how a person who is found to
have wrongfully and without any title come on to the land of another
can challenge that man's title and say "show me the terms of the lease
upon which you hold."

The case went down on remand. Unfortunately, on the first issue
the order which went down referred to " relief " instead of "lease " and
that led to some confusion in the Court below. The then District Judge,
Mr. Fox, made findings and reported them to this Court. The case was
then again remanded by my brother Mahmood and the late Mr. Justice
Brodhurst to the District Judge. It came then before Mr. Peunington,
who was then acting as District Judge, and Mr. Pennington went into
the matter and he returned his findings. Those findings were returned
on the 12bh June, 1890, and those apparently are the findings upon
which in my brother Mahmood's opinion he would give a judgment in
favour of the defendants-appellants in this case.

I must say, speaking entirely for myself, that I do regret that any
local dispute between a Hindu and some Muhammadans should have been
kept alive in that district over all these years by those orders of remand,
which appear to me to have been not only unnecessary, but not justified,
this being a second appeal, by s. 566 of the Code of Civil Procedure.
What is the power of the Court under a. 566 to make an order of remand
in a second appeal ? Before considering that section, it is well to bear
in mind that the Code of Civil Procedure prohibits a Court in a second
appeal from questioning the findings of fact of the lower appellate Court
unless there is no evidence or, what is the same thing, no admissible
evidence in support of them. Their Lordships of the Privy Council
have said more than once in unequivocal language that that is the
[557] law, and the Courts in this country in second appeal are debarred
from questioning, in any form, shape, or way, the findings of fact, when
there is evidence in support of them, no matter how erroneous in the
opinion of the Court those findings may be. One has to bear that in
mind when one has to consider the power of the Court under section 566
of the Code. Section 566 is as follows :

" If the Court against whose decree the appeal is made has omitted
to frame or try any issue, or to determine any question of fact which
appears to the appellate Court essential to the right decision of the suit
upon the merits, the appellate Court may, if necessary, frame issues
for trial, and may refer the same for trial to the Court against whose
decree the appeal is made, and in such case shall direct such Court to
take the additional evidence required.

" And such Court shall proceed to try such issues and shall return
to the appellate Court its finding thereon together with the evidence ".

It is obvious from that section that a Court in second appeal





13 A 537.
(1891) 196.

13 All. 558





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

cannot make an order of remand which tends to question the findings of
fact of the lower appellate Court. A Court of second appeal frequently
no doubt, would have corns to a different conclusion as to the facts
from that which was come to by the lower appellate Court. But
because we are not satisfied with those findings and because they
are not findings which we should have come to, we would not be
justified in making an order of remand which would re-open ques-
tions of fact which have already been found by the lower appellate
Court. And further it is obvious that an order of remand should not
be made if the findings of facts of the lower appellate Court, rightly or
wrongly, dispose of the issue before the Court. It is no part of our busi-
ness to hunt about and find means by which we may upset a decree and
decision of the lower appellate Court of which we do not approve. Now I
have come to the conclusion that these various remands not only were
unnecessary, but that they were practically and in fact a violation of
the principle that we should not in second appeal interfere wifch the
findings of fact of the lower appellate Court. I pointed out that [558]
on those findings of the lower appellate Court, no question would have
arisen as to the area of the land. It was found that land was let by the
zemindars. No question could have arisen as to the terms of the lease.
It was not suggested that any lease was determined except by the
wrongful act of the defendants and that could not determine the plaintiff's
title. Under these circumstances, in my judgment, we are bound to
decide this case on the findings of fact which were come to by
Mr. Nicholls as far back as the 17fch March 1888,and to discard the findings
of fact, although I think they are immaterial, which were come to on the
subsequent orders of remand.

I do not think, for myself, that, strictly speaking, it is necessary
to consider at all the construction and meaning of s. 9 of the Specific
Relief Act, or the question whether a person who has merely a title by
possession can maintain u suit for ejectment against a person who
subsequently comes upon the scene and without any title in himself
disturbs the plaintiff from the possession which he was enjoying, such
as it was, because on the record there is the finding of fact of
Mr. Nicholls that the plaintiff was in possession until he was disturbed by
the defendants, and that he was in possession as tenant to the zemindars
who had authority to dispose of the land. However, as the question has
been raised by my brother Mahmood it is as well for us to consider it and
dispose of it once for all, so far as this Court is concerned. I do not
propose to go at any length into the authorities on that point ; I shall
leave that question to be dealt wibh by one of my brother Judges who is
more familiar with the authorities than I am. But I wish to express
views of mine on the point which I have expressed on several occasions.
Section 9 of the Specific Belief Act was a section which, in my humble
judgment, was passed in order to prevent persons ousting a man from
possession except by due process of law, and it was intended that under
that section a suit might be brought within six months, and the person
ousted be put into possession no matter what title he bad. It was a
section the object of which was to drive persons who wanted to eject a
person into the proper Court and prevent [559] them from going with a
high hand and ejecting such person. That section has nothing to do with
a suit on title for possession. The section itself says in one of its para-
graphs '' nothing in this section shall bar any person from suing to
establish his title to such property and to recover possession thereof."



It is merely a section which enables a man to come into Court and 1891
be put back into possession, if, although he had no title, he was actually MARCH 18.
in possession, notwithstanding what title the other person may prove. It
does not suggest for one moment that a man who had a possessory title- APPEL-
should be compelled to bring his suit under that section or not at all. LATE

With regard to the right of a person who is in possession to remain CIVIL.
in that possession until he is ejected by a person with superior title,
the cases in England are consistent. There are several cases to the 13 A. 537
same effect in this country and their Lordships of the Privy Council ** A.W.N.
have quite recently recognised the fact that a mere simple title of posses- U89J) 196.
sion, there being no other title at all, is sufficient to enable the person
to maintain a suit against a person who has got no better title ; and it
stands to reason that it ought to be so. It would in my judgment be
contrary to justice, equity, good conscience, and common sense to hold
that a man who had been, for instance, for eleven and balf years in quite
and undisturbed possession of land to which he had no right except his
title by possession might be disturbed by a stranger going along the road
coming in and ejecting him, such stranger not having any title whatever to
the land. It would be contrary to common sense to say that the man so
ejected should be limited in his right to bring his suit by s. 9 of the Speci-
fic Relief Act. It would be depriving him of a right which is enjoyed by
all the subjects of Her Majesty, a right of vindicating their rights to
property of which they have been wrongfully dispossessed. It certainly
cannot lie in the mouth of the defendants in this case who bad no title at
all, to say, " you have got no legal title, and therefore I was entitled to
come in and turn you out." That would amount to saying that a person
who has possessory title can be turned out by an absolute stranger who
[560] has no title at all. I would therefore dismiss this appeal with costs.

STRAIGHT, J. As one of the Judges who has been called in con-
sequence of the difference of opinion between the learned Chief Justice
and my brother Mahmood I desire to make a few observations with
regard, first of all, to the order of remand which was originally made when
he was sitting as a Single Judge, and, secondly, as to the remarks which
have fallen from him to-day, by which it was made to appear that the
construction pub by my brother Mahmood on s. 9 of the Specific Relief
Act is the admitted construction adopted practically not only by all the
Courts in India but by the Privy Council.

This suit, which commenced, as we know, in the month of March,
1887, need not be discussed by me as to the shape in which it was precisely
presented in the plaint. It is enough for me to consider the precise
question which was before the learned Judge in appeal and which he fully
considered and which he determined. That question was, whether these
defendants having already a mosque or masjid erected upon certain land,
had encroached from the proper area upon which that mosque was situat-
ed on to the land which had been in the possession and occupation of
the plaintiff between the months of July and September 1886. The
learned Chief Justice has said, and I entirely agree with him, that that was
a very simple issue. I am thankful to think that no question of probability
was introduced into this case by the learned Judge. It was as probable
that the Hindu zamindar and the original tenant, the Hindu plaintiff, had
conspired for the purpose of defeating or injuring these Muhammadan
defendants as that these Muhammadans had done an arbitrary and zabar
dast act in inclosing land that did not belong to them. Fortunately,
however, these cousiderationshave not been introduced by the learned Judge

A VII 45

13 All. 561



1891 below. The learned Judge tried the case upon the pure question of fact,
MARCH 18. namely, was the encroachment alleged by the plaintiff made upon his land
or land in his occupation between the months of July and September 1886 ?
The learned Judge has found in plain terms that the encroachment was
LATE [561] made ; that the wall was put up ; that the saiban was erected, and
CIVIL, that the land was in the occupation and enjoyment of the plaintiff at the
time those acts were done. Of course if a Court of second appeal takes
13 A. 837= upon itself not to like the findings of fact recorded by a Court of first
11 A.W.N. appeal, it is a very easy process for it to remand the case, and to go on
(1891) 196, remanding it, until a Judge is found who gives a finding to the liking of
the Court of second appeal. I am sometimes dissatisfied with the find-
ings of fact recorded by the Court of first appeal, but I have always felt
myself constrained to accept those findings, where there are clear materials
in the record from which the Judge might find certain conclusions and
where the case is not one of absence of any evidence. The result of
unnecessary remands in this case has been that whilst Mr. Nicholls, in
the first instance, in most clear and explicit terms found. v jo one way, we
have an intermediate remand to another Judge, whoi gives a some-
what halting reply, and a second remand to a third learned Judge,
resulting in that learned Judge taking a different view altogether. How
long is this to go on, and when would a Court ever have an opportunity
of bringing litigation to a close ? I suppose that it was with that feeling
s. 564 of the Civil Procedure Code was framed, and a very wholesome
provision it is.

I gay with the most profound respect to my brother Mahmood that,
had I been his colleague I should have dissented from that remand, because,
in my opinion, it was not only wholly unnecessary, but contrary to the
provisions of s. 564. Therefore I concur with the learned Chief Justice
that what Mr. Nicholls found as tho Court of first appeal before the
remands were made must provide the material upon which this appeal
must be determined, and behind those findings of fact we to-day cannot

It has been said that s. 9 of the Specific Eelief Act bears the con-
struction, namely, that which my brother Mahmood has placed upon it.
Then the result is this, that a man who has been in peaceable possession
of immoveable property for a period of 10 years, may, by the forcible entry
of an absolute stranger and trespasser, be turned out, and that if he
does not bring his suit within six months, the fact [562] of his an-
tecedent peaceable possession is no evidence of his title. What is s. 9
of the Specific Eelief Act ? It only reproduces the rula which says
that a person having a right to which wrong has been inflicted,
is entitled to come into Court and assert that right. If my brother
Mahmood's reading of s. 9 of the Specific Eelief Act is correct, then it
would be practically precluding the suit contemplated by arb. 142 of the
Limitation Act. What s. 9 of the Specific Eelief Act intended to do, and
in my opinion does, is to provide a summary and speedy remedy through
the medium of the Civil Court for the restoration of possession to a party
dispossessed by another, leaving them to fight out the question of their
respective titles if they are so advised. This s. 9 is no more than a
reproduction of a provision of the Eoman Law by which the prastor was
entitled to restore possession to a person who had been forcibly dispossessed
of property. It was thought, and wisely thought, that if power was not
given to the Civil Courts to afford this speedy remedy, most high-handed
and intolerable oases of dispossession might occur, with the result that



the intruder, having forced himself into possession, might snap his fingers 1891

and say " here I am in possession ; prove your title and do your worst," MARCH 18.

It would neither be justice, equity, good conscience, . nor common

sense to recognise or tolerate any such doctrine, and I for one decline APPEL-

to do so. In this connection I think it right to refer to the case of LATE

Davison v. Gent il). There it was remarked by Baron Bromwell "It CIVIL.

may be that the plaintiffs have no right as against Sherwood, and

that Sherwood might have a title as against them. But Sherwood is not 13 A. 337 =

a parby to the suit. The party who has turned the plaintiffs out of pos- H A.W.N,

session is sued. The plaintiffs only fail to show that they have a title (1891) 196.

under a particular person. It is not for the defendant then to ask it to be

presumed that he, has any title or right to recover. It is for him to prove

that he has title or right to recover. It is for him to prove that he has

title in answer to the plaintiff's proof of a prior possession."

The same view is to be found in Asher v. Whitlock (2) and has recog-
nised in Pemraj Bhavaniram v. Narayan Shivaram Khisti (3) [563] and
Krishnarav Yashvant v. Vasudev Apaji Ghotikar (4) and in a ruling of
this Court to be found in the Weekly Notes for 1887, p. 55, Muhammad
Yusuf v. Sukh Nath. My brother Mahmood did not refer in terms to
the passage in the Privy sCoun oil judgment of which he scoke, which is
to be found in L.R., 7 I. A., p. 73, Wise v. Ameer-un-nissa Khatoon. But,
as the Chief Justice of Bombay observed in the case reported in the I. L. E.,
8 Bom., those remarks of Sir Barnes' Peacock in delivering the Judg-
ment of their Lordships of the Privy Council must be read in conjunction
with the facts of that very peculiar case. I cannot hold or allow that the
course of authority in India has ever been to the' effect that s. 9 of the
Specific Relief Act debars a person who has not brought his suit within
six months of his dispossession from giving evidence of his possession in
support of his title* Under these circumstances I have no hesitation what-
ever in holding that the findings of fact of Mr. Nicholls being accepted,
the suit of the plaintiff was rightly decreed, and that the plaintiff was
entitled to eject the defendants ; and further, that the land being in his
possession and the erections being the erections of trespassers, he was
entitled to remove them. I agree in the order made by the learned Chief

TYRRELL, J. I entirely concur in what has fallen from the learned
Chief Justice and my brother Straight.

KNOX, J. I had proposed to preface my judgment by quoting certain
portions of the judgment of the learned District Judge which satisfied me
that the lower appellate Court had before it a clear view of the question
involved in the appeal and had arrived at a positive finding which dispos-
ed of this question. The portions to which I had intended to refer have been
given in full by the learned Chief Justice in the judgment which he has
just delivered and I do not therefore repeat them. I only repeat that
after a careful consideration of the judgment delivered by Mr. Nicholls, I
am satisfied both that that learned Judge had properly seized himself of
the questions that arose before him in that appeal and that he had pro-
nounced upon those questions findings which disposed of [564] them.
I therefore hold that this Court is precluded by law from going be-
yond those findings of fact, and the position to which I revert in
coming to a decision in this second appeal is the position at which the case

(1) 26 L J. Exch. 122. (2) L.K. 1 Q.B. 1. . (3) 6 B, 215.

U) 8 B. 317.



1891 stood prior to the 1st July 1889. Reverting to that position I find no

MARCH 18, question of law involved in the pleas as recorded in the memorandum of

appeal, nor indeed 'did I find any in the argument addressed to me whilst

APPEL- sitting in this Full Bench which properly flowed from those pleas or which

LATE bore upon the sole question arising in this case, namely, whether in law

CIVIL. 'ka Pl am tiff had made out his title for possession and demolition of the

buildings which have been found wrongfully erected by the appellant.

13 A. 537= I would, therefore, without any reference to or consideration of what haa

11 A.W.N. been found by the Judge of Gbazipur since the 1st July 1889, dismiss

(1891) 196, this appeal with costs.

Appeal dismissed.

13 A. 564 = 11 A.W.N. (1891) 16i.

Before Mr. Justice Straight and Mr. Justice Makmood.

SHER SINGH AND OTHERS (Judgment- deb tors) v. DAYA RAM AND
OTHERS (Decree-holders)* [30th April, 1891.]

Execution of decree Principal of res judioata as applied to execution proceedings Rule
in Sarju Prasad v. Sita Ram Civil Procedure Code, s. 373.

Where a judgment-debtor, being entitled and having an opportunity to plead
s. 373 of tha Coda of Civil Procedure as a bar to execution of the decree against
him neglects to do so, and the application in respect of which such objection

might have been taken is entertained by the Court and orders passed thereon,
the principle of res judlcata will apply to such proceedings, and the judgment-
debtor cannot at a subsequent stage of the same execution proceedings object
that such previous application for execution ought in fact to have been held to
be barred by the operation of s. 373 abovementioned.

[R., 16 A. 390 (393) = H A.W.N. 131 ; 21 A.W.N. 32.]

THE facts of this case sufficiently appear from the judgment of
Straight, J.

Mr. T. Gonlan and Mr. A . II. S. Reid, for the appellants.
Munshi Madko Prasad, for the respondents.


STRAIGHT, J. This is a first appeal in execution, and the decree to
which it relates was dated the 16fch December 1879. That is a [563]
decree passed upon a mortgage, and was, so I am informed, drawn up in
the form then prevailing, providing for the sale of the mortgage property
in the event of the amount of the decree not being paid by the mortgagor,

The first application for execution was made on the 22nd April 1880,
and no further reference need be made to that proceeding. The second
application for execution was put in on the 29th January 1883, and upon

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 54 of 155)