Moti Singh and Others vs Deoki Singh and Others

Wort, J.—This is, the plaintiff''s appeal in an action in which they, first of all claimed title to a quarter share of 58 palm trees and 61 date trees. The plaintiffs, claimed partition after establishing their title to the one-fourth share in the trees. The Judge in the Court below has come to the conclusion that the action was barred by limitation in the sense that neither the plaintiffs nor their predecessor-in-title had been in possession within twelve years and therefore the action was out of time under Article 142. At first there was some discussion in the case as to whether the trees could be considered as a moveable property and whether the action was governed by Article 142 or Article 144, and, if not, whether the action in its present form was misconceived. Now this, matter, for the purposes of this Court at any rate, has been decided by my brother Ross, on 8th July 1925 in Appeal No. 91 of 1923 Ashloke Singh v. Bodha Ganderi 1926 Pat 125 and was reported when at its later stages it came before a Division Bench of this Court which confirmed my brother Ross''s decision so far as the particular point with which, I am dealing is concerned. It was there decided that fruit trees the produce of which is got, as is the case in the matter before me, could not be considered as timber and therefore were not excluded from Immovable property as defined in the Transfer of Property Act. Under the Registration Act Immovable property does not include standing timber, growing crops or grass. The question which arose in this case was whether interest in an Immovable property, apart from the interest in the land itself, could be acquired as alleged by the plaintiffs in this case. The decision of this Court to which I have referred establishes that matter, and in that decision reliance was placed upon the well-known case of Marshall v. Green (1876) 1 CPD 35. That is all I propose to say on that matter.

The plaintiff claimed a partition, as I have said, of their interest in the trees. Mr. Mitter presses upon me the decision of the learned Judge in the Court below which in effect is that after considering the oral and documentary evidence of the parties it has not been established that the plaintiffs or their predecessor in-title have been in possession within twelve years. It is contended that that finding is conclusive and being binding as a decision of facts cannot be disturbed by this Court. Now, had the case been different from what it really is, there is no doubt the argument which Mr. Mitter advances would have to be given effect to, as I am not entitled to go into the evidence to see whether the judgment of the learned Judge is justified on this point but to take the finding as it is and decide the case accordingly. But this case is different. The plaintiff''s claimed title from one of three brothers who together with wife of one of them had interest in these trees. It is suggested that their interest was a divided and separate interest. At one stage of the case in the Court below it appears to have been argued that they were members of a joint family. We are not concerned with the decision of the trial Courts but the learned Judge of that Court came to the conclusion that the plaintiffs were not entitled to argue that they were members of a joint family as they had not alleged that in their plaint. The appellate Court, however considered the matter and came to the conclusion that the plaintiffs were wrong as regards their allegation that their predecessors interest was a separate interest, and in the circumstances of the case, held that the three brothers and the wife were, tenants in common.

It is impossible to accept the argument of Mr. Mitter that because the plaintiffs failed to establish a particular title of their predecessors which they alleged, their action must now fail although it is now established that these persons or one of them had some title to pass on to the plaintiff''s. There is no doubt that the plaintiffs did acquire some interest, whatever it might have been, from Rameshwar, and in the events which happened it is clear that what they acquired was a tenancy in common of these trees. Now that finding of the learned Judge in the Court below clears, the way for the disposal of all the other questions in the case. From the moment the Judge found that they were tenants, in common the question of possession within 12 years did not arise in the form in which it was decided. The mere fact that they were tenants in common would show that they were, in possession even if they lived a great distance from the village as was suggested and even if they had nothing whatever to do with these trees, unless it could be shown by the defendants that the other co-tenants had ousted the plaintiffs predecessor from this property. Now it is quite clear that the learned Judge in the Court below proceeds to decide this case on that basis and quite rightly. Then, having come to a certain conclusion with regard to that, he deals, in my judgment in an erroneous manner, with the other questions which arose.

He dealt with a number of documents the earliest of which was of 1919 which was brought by the defendants to show that one of the other persons, i.e., persons other than Rameshwar, had made demand for five years'' rent from the persons tapping these trees. That was to prove that by the making of this demand of rent there was an ouster by that person. No argument is necessary on a point like that. It is quite clear that a demand of rent by a co-tenant cannot be evidence of ouster in any circumstances. Demand of rent is an equivocal act. At most it may be a demand by the person himself which amounts to nothing. On the other hand it may be a demand by an agent or co-tenant. In any event, whether such a demand is made on his behalf or on behalf of others, it is not evidence of any ouster by him of the other co-tenants. The other documents which came at a later date were of no greater value. But assuming that Exhibit K, which was the first document of 1919, was evidence of ouster, it was so on that date, i.e., 1919, and that is the earliest instance which the defendants had to rely upon in order to prove ouster. All that need be said with regard to the matter is that it was too late because 1919 was yet within the period of 12 years before the suit and, as the plaintiffs had been shown, by what I have already said, to be in possession by their co-tenants before that date, it is quite clear that the action would not be barred by limitation. As I pointed out, the Judge approaches the case in that way and then proceeds to decide the case in an omnibus statement on a different ground altogether. In the circumstances of this case, although as a general proposition it was for the plaintiffs to prove, that they were in possession, their possession, has been proved by the finding of the Judge that they were co-tenants, and it was therefore in the circumstances necessary, as I have already stated, for the defendants to prove ouster. If the conclusion of the Judge had been that a consideration of oral and documentary evidence an ouster of the plaintiffs had been proved there would have been an end of the matter. But the statement the Judge makes in his judgment is something quite different, viz., the plaintiffs had failed to establish or prove that they were in possession. Quite clearly, from the facts which I have already stated, the plaintiffs had established that they were in possession. In those circumstances it seems to me quite clearly that the judgement of the learned Judge in the Court below is wrong in law and must be set aside. The plaintiffs are entitled to succeed in their action in the circumstances, and the result will be that the learned Judge''s judgment be set aside and the plaintiffs will be entitled to a preliminary decree for partition with costs throughout.

Leave to appeal under the Letters Patent is refused.