Gopal Sahu and Others vs Ghanshyam Das and Others

The defendants are appellants. They are aggrieved by the decision of the Subordinate Judge of Muzaffarpur, dated 28th June 1926, who disagreeing with the decision of the Munsif decreed the plaintiffs'' suit for possession over the land in dispute. The plaintiffs purchased in January 1913, a plot of land No. 1070 in mauza Asoki Parshotimpore. They built a pucca, house over it, leaving a portion south of it as parti. The defendants are owners of plots 1071 and 1072 south of the parti land in dispute. They have built houses on those plots and on 28th January 1923, they put up fencing on the eastern and western ends of the parti land, and plaintiffs state it as their cause of action being an interference with their possession over the land in dispute.

Both the Courts below have concurrently held that the land in dispute forms part of the plaintiffs'' plot 1070 and that the plaintiffs have established their title to it. The defendants therefore have no title to the land in question, and they could succeed only by showing that they had held possession of the land adversely to the plaintiffs for over twelve years.

The Court below has held that the defendants failed to prove this, and in fact one of the defendants'' witnesnes, namely, witness 2 admitted in his evidence that they built their house on the south about six or seven years ago and that the plaintiffs built their house on the north about twelve years back. The learned advocate on behalf of the defendants has failed to show that the view of the evidence taken by the Court below on the point is not borne out by the record.

The only contention that was advanced on behalf of the defendants was that the plaintiffs ought not only to prove their title but also their possession within twelve years in order to succeed in a suit of this nature. Now, the land in dispute was admittedly parti, and the plaintiffs having title to it will be deemed in law to be in possession thereof even if they had not in any way used it. They might not have had any necessity to use this land beyond keeping it as an open space or parti south of their house. On the other hand, the Munsif has referred to the evidence to show that the plaintiffs'' sweepers used to pass over this land and this was certainly a use of the land by the plaintiffs.

Therefore, even if this contention prevailed, which according to our view has no substance, there is evidence of the plaintiffs having exercised acts of possession over the land in dispute such as they had occasions to exercise. The result is that the appeal is dismissed with costs.