Kuldip Singh and others vs Ram Sewak Singh and others

Coutts, J.—This appeal arises out of a suit for recovery of possession of a 2-annas share in village Manikpore on the allegation of the plaintiffs'' ijara right. It appears that the plaintiffs'' ancestor took a 2-annas ijara from one Fazal Hussain who had a 4-annas mokarrai interest in the village. This was in the year 1879.

In 1882 the defendants'' ancestor purchased Fazal Hussain''s 4 annas mokarrari but before this date Fazal Hussain had mortgaged his remaining 2-annas to the plaintiffs'' ancestor. In the year 1897 the plaintiffs sued on the mortgage and got a decree, and the position of the parties now is, that the plaintiffs are the 2 annas ijaradars and the defendants are the 2 annas mokarridars. The suit was decreed in the Court of first instance and this decree was upheld on appeal by the District Judge. The defendants have now appealed to this Court.

The point taken in appeal is that the suit being one in ejectment the plaintiffs must show possession within 12 years and it is contended that on the finding of the District Judge the suit is governed by the Full Bench decision of this Court in case of Shiva Prasad Singh v. Hira Singh (1921) 2 P.L.T. 487: 6 P.L.J. 478: 62 I.C.I. (F.B.) and that the plaintiff''s suit must fail. The finding of the District Judge on this point is as follows:

On the evidence I feel constrained to agree with the Subordinate Judge that neither party has satisfactorily proved his possession during the period between 1304 and 1315. "But the District Judge has brought to his aid the title which the plaintiffs admittedly had in the year 1304 and (sic) the plaintiffs'' suit. The learned Vakil for the appellants contends that the learned District Judge should not have brought to his aid the (sic) of the plaintiffs and for this he relies on the Full Bench decision (sic) read referred to, where the learned Judges have said: ''If it is found that the evidence produced by both the plaintiff and the defendant as to possession is unworthy of credit the plaintiff''s suit must fail, inasmuch as the presumption which arises upon proof of title cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given." On the other hand, Mr. Manuk appearing on behalf of the respondents relies on that portion of the judgment of the Full Bench where the decision in the case of Maharajah Koowur Baboo Nitrasur Singh v. Babu Nand Lall Singh (1859) 8 M.I.A. 199: 1 Sar 744: 1 Suther 420: 1 W.R.P.C. 51 (P.C.) is relied on, viz., "where there is evidence on both sides of more or less equal weight so as to create a doubt as to where the truth lies, the probabilities may be regarded and may supply the additional weight necessary to turn the scale in favour of one side or the other." In the present case it is somewhat difficult to discover under which of these categories the finding of the learned District Judge comes, and if this appeal had to be decided on this point alone I should be inclined to direct that the appeal be remanded for clear decision by the District Judge The appeal before us, however, must be dismissed on another ground.

The position of the parties, as I have already said, is that the plaintiff are ijardars in respect of 2-annas and the defendants are mokarraridars another 2-annas. There was a partition between the defendants and their co-sharers and the learned District Judge says that, "It is admitted that up to the time of the Civil Court partition collection was (joint)." No question of limitation therefore, can arise, because the collection being joint there could be no adverse possession by the defendants until, at all events, the years 1906, and 1906 was within 12 years of the institution of the suit. As the learned District Judge says "If there was joint collection at the time then any failure to deliver to the plaintiffs their share of the rent can hardly be held to amount to assertion of adverse title or to dispossession until it is shown that the plaintiffs'' title was definitely denied." The decision of the learned District Judge is certainly correct and I would dismiss his appeal with costs.

Das, J.

I agree.