Baijnath Mandar and Others vs Ram Adhin Ray and Others

Wort, J.—It is better in this case to refer to the cross-appeals with which I propose to deal at once by their numbers. They are 1166 and 1167, and in support of these appeals it is contended by Mr. Jha that his clients having purchased the jote rights, although they were merely co-sharers, were purchasers on behalf of their whole body of co-sharers and consequently the learned Judge in the Court below was: wrong in allowing the plaintiffs (appellants of that Court) to retain six annas interest. Reliance is placed on a passage in the well-known case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 PC 144. The passage in the opinion of Sir John Edge was this:

Even if the Midnapur Company purchased any jote rights in lands held in common by the co-sharers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote rights so purchased would by the purchase be extinguished.

In my judgment if the learned Judge in the Court below was right on the main question, then it seems to me that Mr. Jha''s cross-appeals must succeed.

I now come to the main appeals in which Mr. Jayaswal appears for the appellants. They are appeals Nos. 988 and 989. They are appeals by the plaintiff who had purchased what were held to be non-transferable holdings from the defendant second party. The plaintiff in the other suit, who is also an appellant in the other appeal, purchased from the plaintiff in the first main appeal a part of that holding. It is clear therefore that the decision of one decides the other. The principal defendant who is respondent before me was the co-sharer landlord as I have already indicated.

It has been held by the Court below that Mr. Jayaswal''s client purchased this non-transferable holding in the year 1903 and since that date was in possession and in the latter respect the judgment of the Subordinate Judge in appeal differs from the judgment of the trial Court. The defendant in answer to the claim which was brought by the plaintiff in this action set up amongst other defences the plea that the holding which the plaintiff purchased was not transferable. The defendants being co-sharers there was an action for rent against their tenants who were defendants second party and the vendors of the plaintiff and eventually obtained a decree which has been held to be, and there is no dispute about this matter, a money decree and not a rent decree.

In those circumstances the case of the plaintiff, the defence which I have mentioned, was that the so-called rent suit decree was not binding on the plaintiff and he wanted a confirmation or in the alternative recovery of possession.

The substantial point in the case is whether in the circumstances of this case the defendants were entitled as co-sharer landlords to set up as defence the question of the transferability or non-transferability of the holding. A number of authorities have been quoted amongst which are two of this Court of single Judges in which it has been held in similar circumstances that the defendant co-sharer landlord was not entitled to set up such a defence.

The substance of those decisions is this: that in the action as framed and having regard to the fact that they were co-sharers, as between the plaintiff and the defendant, they were in similar position to that of the plaintiff and a third party and that the defendant could not be considered in the light of his position as a landlord. I must say that the decision that the defendant in an action which is in substance one for ejectment is not entitled to set up any defence he can in order to defeat the plaintiff''s claim comes to me as a matter of surprise.

It is a fundamental principle in an action of this kind that the plaintiff must succeed on the strength of his own title and not on the weakness of the defendant. As a comment upon that principle I would state that in an action of this kind it is sufficient defence (and this is the law both in England and in India which is not followed in India as far as my experience goes) to aver that he, the defendant, is in possession, but that does not prevent the defendant from attacking the plaintiff''s title as far as he possibly can. The necessity for my decision on this point is obviated by the fact that there is a Divisional Court decision of this Court in Narpat Singh v. Domi Lal AIR 1920 Pat 825.

It is not an official report, but Atkinson and Adami, JJ., are there reported to have held that the landlord co-sharer although viewed in his character of purchaser in an execution sale of the right, title and interest of the tenant is not entitled to raise the question of the transferability, yet in his capacity as landlord he is entitled to raise that question to the extent of his own share. That decision is binding upon me. Therefore in the circumstances I must decide this point against the appellant. There is one point only left.

Mr. Jayaswal says that if he is wrong on that question which I have just decided, still he has a title by prescription. A right of occupancy accrues to a tenant in circumstances which are well known, but which are absent in this case, but he claims a prescriptive right outside the Bengal Tenancy Act and under the Limitation Act. It has been held by this Court and I think indicated by the Privy Council that a person may in India acquire some right short of the proprietary interest by prescription.

That case is a somewhat startling proposition to an English lawyer, but the explanation so far as India is concerned is that there are interests, in the land which are of a permanent character other than proprietary interest, and indeed in this connexion it must be remembered that even the proprietary interests in land in India are something quite different from the fee simple known to English lawyers. It is that title which the appellant claims here, namely a prescriptive title short of the proprietary interest.

The Limitation Act does not definitely lay it down, but it is clear that an adverse possession such as the plaintiff sets up must be open and hostile. The text-book writers in India recognize that principle.

Had the case been decided on the English law the matter of course would have been clear. It seems to me however that the law in this respect in India and in England is the same. Was the possession of the plaintiff open and hostile in this case? The finding of the trial Court was definitely against this. The learned Judge in the appellate Court has not dealt with it. But giving the best consideration to the case which I can, I come to the conclusion that he was not asked to reverse the finding of the trial Court on this particular point and therefore it must be assumed to stand where it was at the time of the judgment of the learned Munsif.

That would, in my judgment, dispose of the appellant''s case so far as his right by prescription is concerned.

In my judgment therefore the appeals should be dismissed and the cross-appeals allowed with costs. As there is a difference of opinion in this Court (although not a conflicting decision in the sense that the decisions are of Division Courts), I give leave to appeal.