Ajudhia Kandu vs Wali Ahmad Khan and Others

Mahmood, J.—I regret that in consequence of the course which this litigation has taken, it is necessary for me to deliver a longer judgment than I should otherwise have considered necessary. The suit is one of small pecuniary valuation, but the points which arise in it are important and it can scarcely be doubted that it was in view of this circumstance that the learned Chief Justice and myself by our order of the 22nd May 1891, referred the case to a Bench consisting of five Judges. The case has accordingly been heard by a Bench consisting of all the members of this Court.

The facts of the case are to be considered with reference to the pleadings of the parties, and I shall therefore begin with those pleadings, because without fully appreciating them it is scarcely possible to appreciate the points of law to which the circumstances of this case have given birth.

Now the first matter to consider is the exact effect of the allegations in the plaintiff''s plaint, and to deal with those allegations with reference to the property now in suit. The property in suit, as also the reliefs sought by the plaintiff, are best represented by the plaint itself.

The land in suit measures 1 biswa 7 1/2 dhurs in plot No. 46 in the ab�di area of mauza Sagarpani, and of this area the possession is sought by the plaintiff with a prayer that the defendants should be ejected from such land.

Upon the land thus in suit, and this being the solitary area to which the litigation relates, it was alleged in the plaint that there stood a mosque built by the defendants some time about the 21st October 1881, and in that plaint it is also alleged that such building of the mosque took place without the consent of the plaintiff and in collusion with the zamindars of the village. This appears from the statement contained in the third paragraph of the plaint. Upon this allegation the relief sought in clause (1) of the prayers in the plaint for relief was that the mosque should be demolished, as the defendants had no right in the land upon which they had built the mosque.

The second relief sought by the plaintiff was the recovery of a sum, approximately Rs. 81-8, as damages mentioned in clause (b) of the prayer for relief in the plaint.

The third relief sought in the plaint was that the costs of the suit, together with interest, should be awarded to the plaintiff.

I have dwelt upon the exact scope of the prayers in the plaint in this detailed manner, because I think that it is important to realize the scope of the action.

For similar reasons I consider it necessary to state the pleas upon which the action was resisted. It was resisted mainly upon the following grounds:--

(1) That the land in suit did not belong to the zamindars of the village under whom the plaintiff claimed, but formed part of the premises belonging to the mosque in which the defendants were interested according to law.

(2) That the plaintiff could therefore have no title to the land; at least no such title to the land as could be derived from the zam�nd�rs,

(3) That the defendants'' possession of the land in suit had been older than the prescriptive period of 12 years, and that therefore neither the plaintiff nor the zam�nd�rs could have any title to the land and that the mosque sought to be demolished was built so long ago as 1873. This last plea was raised in para 3 of the written statement of the defendants.

(4) That the lease under which the plaintiff claimed could not include the land in suit, because no such lease was ever given by the zam�nd�rs, and this statement occurs in para. 2 of the defendants'' written statement.

Upon this state of the pleadings the Munsif, Munshi Matadin, framed issues represented in his judgment of the 2nd September 1887, and I refer to his judgment to render the facts of the case intelligible.

Upon the pleadings as already stated by me it is clear that it rested upon the plaintiff who sued to oust the defendants to prove his title for seeking such ouster, coupled as that prayer is with the demolition of the mosque, because, to put the matter upon the broad juristic sense, it is for him who seeks a change to show why the change he seeks should be made. This is not only a rule of law, but also of every ratiocinative science in connection with such problems. It therefore lay upon the plaintiff to prove the reason why the defendants should be ousted; why the mosque and other buildings sought to be demolished should be demolished; why the damages claimed should be awarded. The desire of the plaintiff was to disturb the state of things as it existed on the 21st March 1887, when this suit was instituted, and of the defendants that it should remain undisturbed. The suit roust be defeated unless the plaintiff shows such a cause as would require a Court of Justice at the date of the suit to disturb the state of things as they were on that date.

I am afraid I have spoken too abstractly in enunciating this doctrine of jurisprudence, and it will therefore be easier for me to explain the application of that doctrine to the circumstances of this case by making reference to concrete facts as they have been found in the case itself.

The first question in the case is, whether Ajudhia, the plaintiff-respondent, ever had a title to the land of which he claims possession or any right to seek the other reliefs by demolishing the mosque and recovering damages which he sought in the plaint.

The question then is, what is his title? The title asserted by him is not one of ownership, but an alleged lease from the owners, whom he asserts to be in collusion with the defendants. Where is the lease? It has been found that there is no written lease, and therefore, naturally enough, it is not upon the record. His title there-tore necessarily rests upon oral evidence.

I seriously doubt whether, as a simple question of law, a lease of property such as the one in dispute in this case can, under the principles enunciated by the Transfer of Property Act, be orally granted, unless it be for agricultural purposes. But I let this matter pass.

I am aware that it is not the duty of this Court as a Court of second appeal to examine the weight of evidence whether oral or documentary in cases which come up before us in second appeal under s. 584 of the Code of Civil Procedure. I am also aware that this principle has been recognized, not only by Her Majesty''s High Courts of Judicature in India, but also by their Lordships of the Privy Council. But I think also that it is the duty of this Court when dealing with second appeals and in considering conclusions at which the lower appellate Courts have arrived to consider whether or not those conclusions have been arrived at in due compliance with the rules of law governing the admissibility of evidence, and which involve questions of the burden of proof, especially in cases in which a title is asserted by a plaintiff who seeks to oust a defendant and that defendant denies the title and asserts that the plaintiff has no title at all.

It is with reference to this view of the law that I wish to quote a few passages from the judgment of the Munsif, Munshi Matadin, as to his conclusions upon the evidence which he had before him, upon the pleadings of the parties and upon the issues which he framed. After having framed those issues, which are clear enough in the judgment of the Munsif himself, he went on to say:--

There is no sufficient proof for the plaintiff that he held possession all along of the land in dispute under an arrangement by the zam�nd�r, and that during the period alleged by him the defendants built the mosque, &c.

Again he says:-- "The evidence of the defendants'' witnesses proves to the Court''s satisfaction that the mosque and shed, &c., in dispute are old and have existed for more than 12 years, and that the land in dispute is possessed by the defendants themselves."

With reference to the locality, after stating that he had deputed two am�ns to prepare the map of the locality, he goes on to say as to the plaintiff''s allegation regarding possession:--

On the other hand, it appears from the map prepared by the Court am�ns that to the south of the mosque there are the platform for keeping tazias and houses belonging to the defendants and others, and then there is the manufactory of the plaintiff, and that the mosque, &c., in dispute are exactly in front of the defendants'' platform for keeping tazias towards the north. It can by no means be supposed that at this place the plaintiff held possession of any portion of land. So far as this Court can consider, the present suit of the plaintiff appears to be entirely malicious and cannot justly be allowed to prevail.

Upon this finding the Munsif dismissed the suit in toto. The plaintiff thereupon appealed to the learned District Judge, who, though recording emphatic findings in his judgment of the 17th March 1888, does not appear to have fully appreciated the exact area of the land in suit or its exact identity. Nor does he seem to have fully appreciated the scope of the relief prayed for in the plaint, for that relief included a prayer for the demolition of the mosque, which, according to the plaintiff''s own allegation in the plaint (vide para. 3 of the plaint), was constructed as long ago as the 21st October 1881, and according to the defendants'' allegation as long ago as 1873.

The learned Judge''s judgment contains many indications that he confused plot No. 38 with the land now in suit, which, as stated by me, is 1 biswa 7� dhurs in plot No. 46, and on which the mosque sought to be demolished stands, and which is the solitary subject-matter of the suit so far as it seeks ejectment (vide relief in the prayer for relief in the plaint).

The learned Judge, however, found that the possession of the plaintiff was disturbed when he put upon the land a stack of wood for fuel and that fuel was removed by order of the Magistrate who granted, to use the words of the learned Judge himself, a perpetual injunction some time about the 28th July 1886, prohibiting the plaintiff from stacking the fuel upon the land now in suit. After the doubt which I have expressed as to whether the learned Judge realized the identity of the land, it is not necessary for me to rule whether that finding as a question of fact was or was not right.

Upon this state of things, the case came up before me in second appeal sitting as a Single Judge in this Court on the 3rd July 1889, and I felt then, as I feel now, that the judgment of the learned District Judge from which the second appeal had been preferred proceeded upon a confusion and misapprehension as to the identity of the property in suit, and also therefore as to the facts which required determination by a Court of first appeal.

In consequence of this circumstance I disapproved of the somewhat emphatic findings of fact arrived at by the learned District Judge and remanded the case under s. 566 of the CPC for clear findings upon the following points:--

(1) What are the exact terms of the lease upon which the 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 zam�nd�r from whom the plaintiff is the leaseholder?

It has been contended before the Full Bench that this order of remand was wholly unnecessary, because the findings of fact at which the learned District Judge had arrived were sufficient to dispose of the rights of the parties, so as to render them unamenable to judicial interference by this Court as a Court of second appeal under s. 584 of the Code of Civil Procedure, and in support of this contention certain authorities were cited to which special reference is not necessary, because they are familiar.

Upon the remand order which I thus made the case went back to the lower appellate Court, at which time the presiding officer was another Judge. Mr. Fox was then officiating in that appointment. That learned Judge, by his finding dated the 17th August 1889, sent up the case again, and among those findings is the following passage:--

The defendants'' possession is not alleged to be permissive; such as it is, it is adverse to the zam�nd�r and his lessee the plaintiff. I find that the site of the mosque building proper (vide plan) has been in defendants'' possession since 1881, and the rest of the land since 1886. I observe that Mr. Nicholls, though he ''affirmed the appeal,'' did not order the destruction of the mosque building. His judgment is somewhat obscure on this point. Plaintiff did not appeal respecting the site of the mosque.

Now this finding is the reason, and a necessary reason, why it was necessary for me sitting here as a Judge in second appeal to ascertain whether or not the learned District Judge had understood the identity of the land which was in dispute. That was the reason why the remand order made by me on the 3rd July 1889 was made.

The facts stood thus, that whilst Mr. Nicholls as District Judge confounded plot No. 38 with the property now in suit, namely, plot No. 46, and of that plot 1 biswa 7� dhurs, the next District Judge in dealing with it held that the property on which the mosque stood and which formed the subject-matter of the litigation had, as in the quotation which I have given, been in the possession of the defendants at least since 1881, and the rest of it since 1886.

To the findings thus returned by Mr. Fox neither of the parties to the litigation consented, because I find that both the parties presented objections under s. 567 of the CPC to those findings.

Upon this state of things I had to consider the case in the Single Bench, and I find for the reasons stated in my order of the 17th December 1889, I thought that the case required reference to a Bench consisting of two Judges. The rules of the Court at that time permitted such reference, notwithstanding the fact that the Single Judge had made an order of remand.

The case accordingly came on for hearing before the late Mr. Justice Brodhurst and myself, sitting as Judges of a Division Bench of this Court consisting of two Judges, and by our order of that date we concurred in remanding the case again under s. 566 of the CPC for clear findings as to the terms of the lease upon which the plaintiff''s suit was based, and, as my judgment in that case shows, for specific information as to what I said in that judgment with reference to the issue which was remanded on the former occasion. I said this:-- "The object of the issue was to have full information in connection with the terms of the lease, that is to say, the time when the lease was executed, the terms on which it was given to the plaintiff, the exact area to which such lease related, as to whether or not it included the land now in suit, and other circumstances connected with what are called the terms of a document."

The case was accordingly remanded, with the concurrence of the late Mr. Justice Brodhurst, upon those issues, and, if I remember rightly, the explanation of the issues was suggested by him to me.

Upon this issue being remanded, the present learned District Judge, Mr. Pennington, has recorded findings the effect of which is that there is no proof that the plaintiff ever held any lease from the zam�nd�rs; that there is no proof that the payment of rent alleged by him in the plaint was ever made; that there is no proof that he was ever in physical possession of the land in suit. The learned Judge sums up his finding in the penultimate paragraph of his order. He says:-- "My finding on the issue remanded is that if there were an oral lease in 1280 Fasli as alleged by plaintiff (which is doubtful) it included the area of the land now in suit, but that it was not a lease in perpetuity nor for any fixed term, and that plaintiff can have no claim against defendants on this lease."

This finding, so far as it relates to questions of fact, is in my opinion a finding binding upon this Court as a Court of second appeal, but it is not binding upon this Court over questions of law which arise from it and that question is a serious one. It is this.

Is there any such thing as possessory title known to the Indian Law, and, if it is, where is the authority for such a title? Such a title was practically unknown to the Indian Law till the considerations which required the enactment of s. 15 of Act XIV of 1859 necessitated that such a title should be recognized, in order to keep the peace and to prevent parties from ousting persons in possession by force or fraud. Now this enactment of s. 15 of Act XIV of 1859 has been the subject of interpretation by their Lordships of the Privy Council, and they have held that because possessory title is intended for these purposes no such possessory title shall enable the plaintiff to come into Court to seek remedy by ouster unless such claim is brought within six months as provided by s. 15 of Act XIV of 1859. That ruling is in the case of (1879) L.R. 7 I.A. 73 (Privy Council) .

That case also is an authority for saying that whenever a possessory title is made the basis of a claim such as this and is brought after the lapse of six months, such a title is not to be listened to because there has been too much delay for relying upon such a title.

Another point upon which also their Lordships of the Privy Council have delivered their judgment is that the ordinary rule of burden of proof as to ownership is not to be disturbed except under the statutory provisions as to possessory title to which I have already referred. Those provisions have now been reproduced as s. 9 of the Specific Relief Act (I of 1877), but they do not in my opinion alter the law, for s. 15 of the Limitation Act (XIV of 1859) was unjuristically placed in the old Limitation Act, though it deserved a place in an enactment which related to Specific Relief. One thing, however, is clear, that in both these enactments, whether Specific Relief be regarded as a subject falling under the category of substantive law or a subject relating to adjective law, the period of six months is a necessary incident before any possessory title can be asserted as the basis of an action for ejectment. This view has been repeatedly adopted by the High Courts in India, and it is fully-supported by the rulings of the Privy Council.

This being so, it is important to consider the date of the suit, which was the 21st March 1887, and then the date of the ouster by the defendants which, so far as this plot, No. 46, is concerned, took place some time, according to the plaintiff''s own statement, in 1881. The suit was therefore undoubtedly beyond the six months period allowed by s. 9 of the Specific Relief Act.

This being so, the next question to consider is, that, inasmuch as the possessory title cannot be pleaded as the basis of the action in ejectment, whether the ordinary rule of law as contained in s. 110 of the Evidence Act would not apply. In my opinion, under the circumstances of this case, considering that the ouster from the land now in suit is admitted to have been so old as 1881, and also in view of the circumstance that the suit was not instituted until the 21st March 1887, the ordinary presumption of law, that he who is in possession of land owns it, applies, and such presumption cannot be abrogated by any statement or proof, even of such facts as that of forcible or fraudulent ouster anterior to six months from the date of the suit.

The ruling of Asher v. Whitlock L.R., 1 Q.B. 1 has been cited as an authority for a proposition opposite to the view which I have taken in this case but that ruling in my opinion cannot in the first place, abrogate the statutory provisions of s. 9 of the Specific Relief Act. (I of 1877), nor can it apply to India if the argument is that it applies in a manner which abrogates the statutory law. The principle recognized there is that a forcible or fraudulent ouster by a defendant will not "enable him to shift the burden of proof as to ownership or title on to the wrong party. That doctrine; so far as it goes, is sound, and has been adopted by their Lordships of the Privy Council in the case of Sundar v. Parbati I.L.R., 12 All., 51, and from that ruling it is not possible for me to differ. I regard that ruling as represented in the report itself as one which is binding upon this Court, but that ruling does not apply to the case here.

Here the action, as I said before, was one in ejectment. The broad effect of the defence is that the plaintiff had no title; that those under whom he claims have no title, and that the very lease never existed, and the finding of the lower appellate Court is entirely in favor of the defendants.

I only wish to add a few words as to this order of remand made by me in the Single Bench on the 3rd July 1889. That order was made because I thought, and still think, that Mr. Nicholls had not understood the case and that he had therefore confounded the identity of the property in suit. It was also made because the judgment of the learned Judge was not in accordance with the requirements of s. 574 of the Code of Civil Procedure.

Then as to the second remand order, namely, the one made by Mr. Justice Brodhurst and myself, on the 24th April 1890, I wish to say that my honorable colleague and myself had fully apprehended the difficulties of the case when that remand order was made, and that the second remand was necessary because of the finding of the lower appellate Court being again inadequate to prove anything other than a possessory title in the plaintiff. Such a possessory title, as I have said, cannot rest longer than six months according to s. 9 of the Specific Relief Act. The suit was instituted after six months of the alleged dispossession the land was in the possession of the defendants ever since 1881, and it had been the subject of litigation between the parties with the result that the plaintiff''s stack of wood (sic) by the Magistrate''s order on the 18th July 1886, and (sic) the possession of the defendant had, over from that date, been nothing other than that obtained by force and fraud, because the possession was obtained under the order of the Magistrate and it was peaceably obtained, and it was so retained till this suit was brought, and such a suit being later than six months from the (sic) alleged in the plaint could not therefore be entertained as a necessary suit.

I am of opinion that upon this state of things this appeal (sic) prevail; that the decree of the lower appellate Court should be set aside, and that the decree of the Court of first instance (sic) the suit should be restored with costs in all Courts. I would order accordingly.

Edge, C.J.

My brother Mahmood has given as his reasons, (sic) the reference of this case to the Full Bench of the whole Court, (sic) it involved questions of law of great difficulty and importance, (sic) entirely for myself, I did not consider that there was any question of law in the case involving the slightest difficulty. This case was heard before my brother Mahmood and myself on the 21st (sic) and at the rising of the Court it stood adjourned for judgment. On the morning of the 22nd my brother Mahmood informed me that we differed and it appeared that we differed in fact as to the legality of these orders of remand, also as to the construction and out of s. 9 of the Specific Belief Act, and further as to the right of a person having a title by possession to maintain a suit of ejectment against a person who was a pure trespasser and had ejected the person having that possessory title. In my humble judgment those questions, were easy of solution, but, inasmuch as there was this difference, my brother Mahmood wished the case to be referred to the Full Bench, and I agreed to refer it.

I regret that I should be unable to follow my brother Mahmood (sic) many of the matters to which he has alluded this morning in his judgment, many of the considerations inducing him to make (sic) order of remand, as those matters were not suggested fey either of the order of remand which he made, or during the course of the argument in this case, or until this morning when my brother Mahmood proceeded to deliver his judgment.

Let us see what this case is. It is a suit brought by one Ajudhia Kandu, a Hindu, against certain Muhammadans; and in that suit the plaintiff alleged that the defendants had wrongfully built upon land that was in his possession as tenant and had ousted him, and that they had at a subsequent period thrown out walls and enclosed other portions of the plaintiff''s holding. The plaintiff alleged that he was a tenant of the zam�nd�rs and held under them. The defendants, on the other hand, set up a title in themselves, their case being that on the land in dispute their ancestor had erected a hut or house and had lived in it, and that the plaintiff never had had possession of any of the lands in suit. Now that was a very simple case to try. It was a case in which, according to my view of the law, the plaintiff could rely on proof of a letting by the zam�nd�rs to him, and if he failed to prove such a letting he could rely on the fact of his possession anterior to that of the defendants, and, if he established that anterior possession, then upon the fact of their wrongful entry upon the land, they having no lawful right to do so. The question of the defendants'' title was also an easy matter for consideration, and the plaintiff having proved prim� facie title, either as lessee or as a person who was in recent possession until ousted by the defendants, it was then for the defendants to prove a title which entitled them to eject the plaintiff and thus to establish that their entry upon the land was rightful.

The suit was brought on the 21st March 1887 in the Court of the Munsif of Ballia. It was decided by the Munsif on the 2nd September 1887, the Munsif finding against the plaintiff and dismissing the suit. Thereupon the plaintiff, on the let November 1887, appealed to the Court of the District Judge, and in that appeal he did not claim demolition of the masjid: that is quite plain. He did not claim possession of the land on which the masjid stood: that also was plain, and was plain apparently to my brother Mahmood when he made the first order of remand. The plaintiff had claim in appeal to have possession given to him of the land adjoining the masjid, which he alleged the defendants had wrongfully entered upon and surrounded by a wall after his, the plaintiff''s, fuel had been removed from that land.

There was another point. It is in no way admitted that the defendants had been in possession of the land with which we have to deal and which my brother Mahmood in second appeal had to deal with, that is, the land adjoining the masjid and on which the plaintiff had stacked his fuel. I say it is no way admitted that the defendants were in possession of this land since 1881. As a matter of fact the plaintiff''s fuel was removed from those lands, as has been found, under the order of the Magistrate, dated the 18th July 1886, and it was subsequently to that removal that the defendants wrongfully went on the land and enclosed it. The District Judge on appeal, dealing properly with the subject-matter of appeal which was before him and discarding the matter in the suit which was not before him, namely, the question of the land upon which the masjid stood, confined his attention to the question as to who was entitled to the land adjoining the masjid which was ear-marked as the land upon which the plaintiff had stacked his fuel, which stack was ordered to be removed by the order of a Magistrate on the defendants'' complaint that it was adjoining the masjid and there was danger from its vicinity; so that, if there was confusion in this Court, in the Court of first appeal there was no confusion as to the plot of land which was in dispute in appeal between the parties.

Now the District Judge, I must say this in vindication of his judgment, made no confusion as to numbers. There was a reference to several old papers and maps. The District Judge pointed out that on the old village maps the boundaries of properties were very carelessly entered, and what he did confine his attention to was, who was entitled to the land which was ear-marked as the land adjoining the masjid upon which the plaintiff''s stack of fuel had been?

What took place before him? The right and title of the zam�nd�rs to dispose of the land in question was not questioned before the District Judge. It was not disputed and it had never been suggested before him, or in this Court until yesterday, that any question was in issue still as to the right and title of the zam�nd�rs to dispose of the land and put the plaintiff in possession. It was not a point, as I shall show hereafter, which apparently was present to the mind of my brother Mahmood when he made his first or his second order of remand. If it was present to the mind of my brother Mahmood, it was not one of the reasons suggested in those orders of remand for making them, nor was it a question inquired into in those orders of remand.

Let us see how Mr. Nicholls, the District Judge, dealt with this case. His finding, so far as it is necessary to refer to it, is as follows:--

I consider it fully proved that the land claimed was let to plaintiff by the zam�nd�rs 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 Durga and Bhikhari, Koeris, and I hold it to be fully proved that as soon as the defendant saw the fuel removed, he wrongfully enclosed the space between the standing; masjid and the houses of those two Koeris and built a saiban on plaintiff''s ground and to the south put up fictitious cattle troughs and the like.

Then he goes on, and we know what his decree was:--

Reversing the finding of the lower Court, I decree the claim of the plaintiff in full as regards the demolishing of the walls and recent erections. The whole of what lies east and south of the masjid as it stood on the 16th July 1886, is to be restored to the condition it was then in. The appellant generously gives up his money claim for damages and previous costs. These parts of his claim and appeal stand dismissed.

That was the decree and judgment against which the defendants appealed here. It was not possible on that appeal to raise any question as to the masjid or the site on which the masjid stood. That point had not been gone into by the District Judge, and he had given no decision on that, because it was not before him. The whole question before this Court in second appeal was the question whether on those findings of fact the plaintiff had made out his right to a decree for possession and for demolition of the walls wrongfully built by the defendants since 1886. It was not open to the defendants-appellants in second appeal to question those findings of fact, unless they were in a position to show that there was no evidence upon which the District Judge could have come to those findings and then it would have become a question of law No such ground of appeal was put forward, and it was obvious that if any such ground had been put forward it would have been a false one. There was evidence before the District Judge, he refers to it in his judgment, and he finds that that piece of land was let to the plaintiff by the zam�nd�rs and he finds that it was occupied down to the 18th July 1886, by the plaintiff stacking his fuel upon it, and he finds that neither the defendants nor any one on their behalf ever entered upon that land until the defendants took the opportunity of wrongfully making entry upon it after the passing of the Magistrate''s order for the removal of the fuel. We must not let this case be confused by extraneous matters. It is well to remember that the order of the Magistrate was not an order dealing with title. It was an order passed on the complaint of the defendants that by reason of the stacking of fuel by the plaintiff there was danger to the masjid. The Magistrate on being satisfied that there was such danger properly made that order.

Then for the first time on the making of that order the defendants took the opportunity of encroaching upon their neighbor''s grounds. The defendants appealed to this Court. It was an appeal which could be heard by a Single Judge. I am bound to say that on these findings of feet I cannot conceive what point of law there was which could be argued in appeal on behalf of the defendants. The findings of fact were conclusive on this Court, and on those findings of fact there could be only one answer in law, and that was judgment for the plaintiff confirming the decree below with possession. However, my brother Mahmood made an order of remand. He tells us to day that that order may have been made because the Judge below had not complied with the provisions of s. 574 of the Code of Civil Procedure, and that it may have been made on the ground that Mr. Nicholls may have been mistaken as to the identity of the land which was in dispute between the parties. In matters of this kind it is always unsafe, I am speaking from my own experience, to rely upon one''s memory as to what was passing through one''s mind nearly two years before. In order to ascertain what were the reasons for the remand and what was the view my brother Mahmood then took as to appeal before him, I may refer to the actual words he need in his order of remand of the 3rd July 1889. That order of remand is as follows:--

The plaintiff-respondent came into Court upon the allegation that he was the lessee from the zam�nd�r of the village in which is situate the land in suit. The plaintiff''s allegation was that in his lease the land was included, and that the defendants resisted hint placing fuel on the land, and that, such fuel having been removed by the order of the Criminal Court, dated the 18th July 1886, the defendants took advantage of the order and raised a wall, claiming the land to form the courtyard of the mosque situate in immediate vicinity of the land. The ouster is stated to have occurred between the 28th July 1886 and the 15th September 1886. The present suit was instituted on the 21st March 1887, and it was resisted upon the ground that the land in suit did not belong to the zam�nd�r 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 the prescriptive period, and therefore neither the plaintiff nor the zam�nd�r could have any title to the land. It was also pleaded that the lease under which the plaintiff claimed did not include the land 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 it fully proved that the zam�nd�rs had the right to dispose of the waste land as they allege they have done. There is absolutely no evidence (the parole evidence of the defendants is beneath criticism) that the land in dispute ever formed part of the masjid or of the masjid precincts. There is evidence, poor in quality, that before the masjid was built, Zorawar, grandfather of defendant, had a thatched hut 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 zam�nd�rs 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 Durga 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 standing masjid and the houses of those two Koeris and built a saibun 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 necessary to have clear findings upon the following points:--

(1) What are the exact terms of the lease upon which the plaintiff conies 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 zam�nd�r from whom the plaintiff is the lease holder?

To take the last issue first. There was a clear finding that the defendants had failed to make out their case that the land 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 see what the terms of the lease had got to do with this matter. The finding was, lease or no lease, as a fact that the zam�nd�rs had got 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 plaintiff held a lease which was forfeited, 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 lease may have been void and indefinite, and it may have been open to any and every objection on the part of the zam�nd�rs, if the zam�nd�rs were defending this suit; but I fail to see how a person who is found to have wrong-fully 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. Pennington 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 12th June 1890, and those apparently are the findings upon which in my brother Mahmood''s opinion he would give a judgment in favor 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 s. 566 to make an order of remand in a second appeal? Before considering to that section, it is well to bear in mind that the CPC 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 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 u/s 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 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 come 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 questions 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 fact of the lower appellate Court, rightly or wrongly, dispose of the issue before the Court. It is no part of our business 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 with the findings of fact of the lower appellate Court. I pointed out that 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 zam�nd�rs. 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 17th 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 a 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 zam�nd�rs 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 with 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 Relief 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 had. It was a section the object of which was to drive persons who wanted to eject a person into the proper Court and prevent 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 paragraphs--"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 be put back into possession, if, although he had no title, he was actually 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 should be compelled to bring his suit under that section or not at all.

With regard to the right of a person who is in possession to remain 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 same effect in this country and their Lordships of the Privy Council have quite recently recognized the fact that a mere simple title of possession, 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 half years in quiet 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 Specific 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 had 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 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 consequence 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 put 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 situated 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 zam�nd�r and the original tenant, the Hindu plaintiff, had conspired for the purpose of defeating or injuring these Muhammadans defendants as that these Muhammadans had done an arbitrary and zabardast act in inclosing land that did not belong to them. Fortunately, however, these considerations have not been introduced by the learned Judge below. The learned Judge tried the case upon the pure question of fact, 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 made; that the wall was put up; that the saiban was erected, and 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 upon itself not to like the findings of fact recorded by a Court of first appeal, it is a very easy process for it to remand the case, and to go on 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 findings 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 in one way, we have an intermediate remand to another Judge, who gives a somewhat 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 CPC was framed, and a very wholesome provision it is.

I say 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 the 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 go.

It has been said that s. 9 of the Specific Relief Act bears the construction, 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 immovable 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 of his antecedent peaceable possession is no evidence of his title. What is s. 9 of the Specific Relief Act? It only reproduces the rule 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 Belief Act is correct, then it would be practically precluding the suit contemplated by art, 142 of the Limitation Act. What s. 9 of the Specific Relief 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 Roman Law by which the praetor 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 highhanded and intolerable cases of dispossession might occur, with the result that the intruder, having forced himself into possession, might snap his fingers and say "here I am in possession; prove your title and do your worst." It would neither be justice, equity, good conscience, nor common sense to recognize or tolerate any such doctrine, and I for one decline to do so. In this connection I think it right to refer to the case of Davison v. Gent 26 L.J., Exch. 122. There it was remarked by Baron Bramwell--"It 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 a party to the suit. The party who has turned the plaintiffs out of possession is sued. The plaintiffs only fail to show that they have a title 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 plaintiffs'' proof of a prior possession."

The same view is to be found in Asher v. Whitlock L.R., 1 Q.B. 1 and has recognized in Pemraj Bhavaniram v. Narayan Shivaram Khisti I.L.R., 6 Bom. 215 and Krishnarav Yashvant v. Vasudev Apaji Ghotikar I.L.R., 8 Bom. 317 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 Council judgment of which he spoke, which is to be found in (1879) L.R. 7 I.A. 73 (Privy Council) But, as the Chief Justice of Bombay observed in the case reported in the I.L.R., 8 Bom., those remarks of Sir Barnes Peacock in delivering the judgment 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 whatever 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 Justice.

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 disposed 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 pronounced upon those questions findings which disposed of them. I therefore hold that this Court is precluded by law from going beyond 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 stood prior to the 1st July 1889. Reverting to that position I find no 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 sitting in this Full Bench which properly flowed from those pleas or which bore upon the sole question arising in this case, namely, whether in law the plaintiff had made out his title for possession and demolition of the buildings which have been found wrongfully erected by the appellant. I would therefore, without any reference to or consideration of what has been found by the Judge of Gh�zipur since the 1st July 1889, dismiss this appeal with costs.