Akal Ahir and Others vs Baijnath Das and Others

Mullick, J.—In this case the question is whether the plaintiffs have proved their occupancy right to the land in suit and whether they are entitled to recover possession from the contesting defendants 3 to 18. The plaintiffs'' case is that by a partition with one Khirodhar with whom they were co-sharers in the holding to which the land belongs, the land fell to their share some years before the suit and that they were in peaceful possession till the 29th July, 1918, when the defendants 3 to 18 dispossessed them. That dispossession is alleged to have followed an order made u/s 144 of the Criminal Procedure Code on the 29bb July, 1918. The parties in that proceeding were the defendants 3 to 18 on the one hand and the defendants 1 and 2 on the other and the allegations of defendants 3 to 18 were that the land in suit was a part of their occupancy holding, that it was mortgaged to Khirodhar the father of defendants 1 and 2, that they had brought a redemption suit against the defendants 1 and 2 and that in execution of a decree obtained therein had taken possession by order of the Court. It was further alleged that the defendants 1 and 2 having resisted their possession after delivery of possession by the Court it was necessary to have recourse to the criminal Court in order that; an order prohibiting the defendants 1 and 2 from interfering with their possession might be passed.

The plaintiffs were not parties to the redemption proceedings and are obviously not bound by the result and in the present suit they ask for a declaration of their title on the ground that they bad obtained title by virtue of a deed of gift from Khirodhar and that the decree in the redemption suit was not binding upon them. In addition to these declarations they seek for recovery of possession.

The Munsif found that although the gift alleged to have been made by Khirodhar had not been made by a registered document the plaintiffs were in fact in possession up to the time of the suit and that the case put forward by the defendants as to their title was entirely false. He found that the plaintiffs had, as alleged, been dispossessed on the29th July, 1918, and he gave them a decree for recovery of possession.

In appeal the Subordinate Judge has set aside that decree. He find''s that the defendants being admittedly in possession the burden was upon the plaintiffs to prove that that they had title to the land, that it was not sufficient to prove that they were dispossessed on the 29th July, 1918, and that as they had failed to prove that they had obtained any valid title from Khirodhar the suit should be dismissed.

A second appeal was preferred to this Court and was heard by a learned Judge of this Court who agreed with the Subordinate Judge and Dismissed the appeal.

The present appeal before us is made under the Letters Patent against the decree of the learned Judge of this Court.

It is quite clear that although the plaintiffs have failed to prove that they derived title from Khirodhar by virtue of a deed of gift they are entitled to recover possession as against the defendants unless the defendants can show that they had a better title than the plaintiffs. In this connection it is necessary to observe that in or about 1911 there was a record-of-rights made of the land in suit and that the plaintiffs were recorded as tenants in possession. There is also evidence which apparently has been believed by the Munsif that the plaintiffs have been paying rent to the superior landlord. Therefore although it is open to the Subordinate Judge in appeal to say that whatever presumption as to title may have been created by the record of rights it has been rebutted by the plaintiffs'' failure to prove the title derived from Khirodhar, still the question whether the plaintiffs are entitled to recover possession on the slrengh of their previous peaceful possession has yet to be determined. From this point of view the learned Subordinate Judge has failed to approach the case. It is not sufficient to say that the plaintiffs have failed to prove their title. It is necessary to enquire whether the defendants have made an affirmative case that they had a good title to the land or at least a better title than the plaintiffs when they dispossessed them. The defendants" case is that the land is theirs and that Khirodhar was the mortgagee. It is not sufficient for them to show that they were successful in the redemption suit against the defendants 1 and 2. They must prove their title as mortgagors and their right to remain in possession upon the strength of that title as against the plaintiff''s also and the learned Subordinate Judge in appeal should have come to a clear decision upon this point. The Munsif came to a decision against the defendants and the learned Subordinate Judge must either affirm that finding or set it aside. An attempt was made by the learned Vakil for the appellants to raise a case of adverse possession but it is quita clear that no such case was made in the pleadings and the learned Judge of this Court was right in declining to go into that point. A further attempt was made to found a title upon the fact that the landlord had received rent from the plaintiffs for some years previous to the suit but mere receipt of rent would not be sufficient) and therefore the question really at issue in this case is whether the defendants have proved that Khirodhar was their mortgagee and that they have redeemed the land. The case must therefore be remanded to the Subordinate Judge for a clear finding upon this point. If he finds that the defendants 3 to 18 were the owners of the occupancy holding and that Khirodhar was their mortgagee, then they will succeed, for the plaintiffs have failed to prove any title derived from Khirodhar. If the defendants fail in this then the plaintiffs will succeed. It has been found as a fact that the plaintiffs were in peaceful possession at the time of the suit and that finding cannot be assailed in second appeal. The result is that the case will be remanded to the Subordinate Judge, for a finding on the question as to the title of the defendants which should be returned to this Court as soon as possible. The costs of this hearing will abide the ultimate result of the appeal. The parties will not be entitled to adduce further evidence.

Dawson Miller, C.J.

I agree. There is abundant authority for the proposition that if a person is in possession of land even without title thereto be cannot be successfully turned out by another person who also had no title and if such a thing should happen the person first in possession is entitled to be put again in possession even if he should fail to prove that he bad a title to the land.