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Judgment
Jwala Prasad, Acting C.J.
The only point raised by Mr. Lachmi Narain Sinha is that the sale-deed executed by Charitar, defendant No. 7, was invalid during the lifetime of his mother, inasmuch as till then he had not succeeded to the property and consequently the plaintiffs deriving their title from Charitar have no right to eject the defendants, howsoever their title may be valid.
The point raised was fully discussed and disposed of by the Court below. The sale-deed in favour of the plaintiff was executed in 1915. As a matter of fact long before that his mother, Musammat Jiranohad, relinquished her right in his favour and she had been dealing with the property as guardian of her minor son Defendant No. 7, Charitar, therefore, was in possession of the property and was competent to transfer the same to the plaintiffs. The want of a proper deed of relinquishment executed by Musammat Jirano in favour of Charitar did not at all affect his title to the property. Apart from this the plaintiffs were actually put in possession of the property on the basis of the sale-deed executed by Charitar and while they were so in possession, they ware dispossessed in the year 1917 by the defendants on the strangth of a valid writ of delivery of possession. The defendants being trespassers, could not dispossess the plaintiffs, even though their title was defective. This proposition was enunciated in Asher v. Whitlook (1865) 1 Q.B. 1 : 35 L.J.Q.B. 17 : 11 Jur. 925 : 13 L.T. 254 : 14 W.B. 26. and has since been followed in a number of cases. These cases have been referred to in the case of Haradhan Mandal Modak v. Iswar Das Marwari 38 Ind. Cas. 797 : 2 P.L.J. 61 : 3 P. L.W. 258. The plaintiffs being in possession prior to their having been dispossessed by the defendants, the onus is upon the latter to show that they had better title than that of the plaintiffs. They having failed to do so, the Court below was right in decreeing the plaintiffs'' suit. The appeal is accordingly dismissed with costs.
DAS, J.
I agree.