Mt. Bibi Zainab and Others vs Muhammad Ayub and Others

Wort, J.—This appeal is by the defendants in an action brought by the plaintiff for possession of two parcels of land upon one of which stood a house which was admittedly in possession of the defendants. It is quite unnecessary to set out in detail the actual facts. It is sufficient to say that the plaintiff claimed title through a purchase from Mt. Masiman and Mt. Safihan who were daughters of one Khedan Mian by his first wife. Some question arose in the Court below as to whether they were in fact sisters, as the facts I have stated would indicate, or whether they were cousins as was the later case of the plaintiff before the learned District Judge. The learned District Judge however has come to the conclusion that they were cousins, but in the events which have happened and the facts which have been found by the learned Judge, nothing turns upon that question excepting the question relating to an argument advanced by Mr. Mahabir Prasad appearing on behalf of the defendant-appellants with which I shall in a moment deal.

The defendants claimed to have been in possession of the property by a gift from Mt. Jumratan which was made just before her death; her death took place in 1928. The alternative case made by them was that the property in dispute was not the property of Khedan Mian, the ancestor, but had been purchased by Mohammad Rafiq, who was the son of Khedan Mian through his first wife Mt. Bano. There was another case put forward by the defendants and this was that the defendants had title by adverse possession. Certain questions of fact in those circumstances came to be considered by the learned Judge in the Courts below. The learned Judge has found that the story of the gift has not been established. He has come to the conclusion that the property was not purchased by Muhammad Rafiq but that it was the property of Khedan Mian. He has also come to the conclusion that the defendants had no title by adverse possession. There were incidental questions which related to these principal questions, but it is unnecessary to refer to them.

Mr. Mahabir Prasad on behalf of the defendants-appellants contends that, in deciding the question whether the property was the property of Khedan Mian or whether it was the property of Muhammad Rafiq, the learned District Judge has failed to take into consideration one of the principal documents of title upon which the defendants relied; that was Ex. D. Ex. D purports to be a purchase by Muhammad Rafiq in the yeas 1890 for the purpose of building a house which is one of the properties, the subject-matter of this dispute. In my judgment, however, the argument is unsustainable. It is to be noticed that the case which the defendants attempted to make out in their written statement was that they had purchased the whole of the land upon which the house stood. It is true that the learned Judge in the Court below has not referred to this particular document (Ex. D) by name, but in considering the question of the title set up by the plaintiff, he has quite clearly referred to it. The circumstances were these. The defendants came to Court and adduced in evidence three documents Ex. D which referred to the land upon which the house stood, Ex. A and Ex. B which related to the other land, the subject-matter of the dispute. They were met however, by Ex. 2, the document produced by the plaintiff. Now it would appear that the defendants were unaware of the existence of this document Ex. 2. It was a document in the name of Khedan Mian, and, if once accepted by the Judge of fact, would dispose of the defendant''s case entirely. The explanation which the defendants gave was that the purchase had in fact been made by Muhammad Rafiq, but in the benami name of his father, Khedan Mian. This is a case which the learned Judge in the Court below did not accept. The matter therefore stands in this way that the defendants came into Court with a document which purported to show a title to the whole of the land upon which the house stood and were met by this document (Ex. 2) which they sought to explain in the manner which I have already indicated. It is impossible, after reading the judgment of the learned Judge on this question, to hold that he did not consider Ex. D. The learned Judge in disposing of this matter makes this statement:

The appellants case in the written statement was that Khedan had nothing to do with the properties and Rafiq acquired the whole of the properties in suit. But in the course of the trial the case of the appellants underwent a change. The defence witnesses gave evidence to the effect that there was an old ancestral house of Khedan, but that house fell down and Rafiq built a new house on the site by acquiring more land. This case is a new case which was never alleged in the written statement.

This statement of the learned Judge is borne out by a reference to para. 11 of the written statement. In my judgment, as I have already said, it is impossible to come to the conclusion that the learned Judge ignored Ex. D in coming to the conclusion on the question whether the property was the property of Khedan Mian or whether it had been purchased by Muhammad Rafiq. The other question relating to title to the property in dispute, as set up by the defendants, is this. The case of the defendants was that the property was purchased benami and the only point advanced by Mr. Mahabir Prasad on this part of the case is that the learned Judge failed to consider one of the most important facts in the case which would go to establish the case made out by the defendants. The fact to which he referred is that the documents of title were produced from the custody of the defendants. It is impossible to say that a fact of that kind is of no importance in considering a question of benami, but it is equally impossible to say that a Judge in considering a question of this character is bound to come to the conclusion, in the event of a document being produced from the custody of the person asserting that title, that his case is made out. The learned Judge, as far as we can see in this case, was disposed to find against the defendants for a very simple reason and that is that a number of transactions to which reference was made in the Court below (of a benami character that is to say) were transactions by Khedan Mian not in the benami name of Mahommad Rafiq as the defendants would seek to make out, but in the benami name of his wife; in other words, the practice of Khedan Mian was not, as suggested by the defendants, to use the name of his son, but to use the name of his wife. It is a matter entirely within the competence of the learned Judge to place what value he thought upon this fact, and he having come to a conclusion on what is a question of fact, it is impossible for this Court to disturb that decision in second appeal.

The only other substantial question argued by Mr. Mahabir Prasad on behalf of the appellants is that relating to adverse possession. Now what appears to have been found here is that after the death of Khedan Mian his cousin Jan Ali had the properties recorded in his name, and after the death of Jan Ali, they were recorded in the name of his wife Mt. Jumratan. The other fact that the learned Judge has found is that the other co-sharers from whom the plaintiff claimed his title did not enjoy the rents of the properties in dispute nor did they live in the house which also was the subject-matter of this action. Mr. Mahabir Prasad contends that although the entry in the record-of-rights is not sufficient in itself, that taken together with the finding of fact, that the other co-sharers did not enjoy the rents and profits of these properties, was conclusive on the question of adverse possession of Jan Ali. Mr. Mahabir Prasad is driven to that position because once it is admitted that those facts were merely evidence of ouster, it would be for the learned Judge in the Court below to consider whether in the circumstances of the case ouster was established. The argument is put in another way. The learned Judge commences this part of his judgment by stating:

This brings us to the question of law regarding adverse possession, the most important point which has been agitated before me on behalf of the appellants.

Mr. Mahabir Prasad contends that the learned Judge has held that the entry in the Record-of-Rights in the name of Jan Ali and the non-receipt of rents by the other co-sharers are as a matter of law, not evidence of ouster. Reference was made by the learned Judge in the Court below to the decision in Abdul Waned v. Mohan Bashi Saha 1930 Cal 466. During the course of his judgment in the case Mukerji, J., referred to the case of Culley v. Taylerson (1840) 11 Ad & El 1008 in which Lord Denman said:

But where the claimant, tenant-in-common, has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there had been an ouster;

and, then referring to the case reported in Corea v. Appuhamy (1912) AC 230, makes this observation:

Speaking of extinguishment of title of a person by reason of adverse possession on the part of his co-owners, the House of Lords observed that nothing short of ouster or something equivalent to ouster could bring about the same result.

Then Mukherji, J., observed:

Exclusion or ouster involves not merely the act of the person ousting but the state of mind of the person ousted. Knowledge on the part of the latter therefore is essential. Such knowledge may be proved directly or inferentially.

I refer to the case of Culley v. Taylerson (1840) 11 Ad & El 1008 for the reason that their Lordships of the Privy Council in the case of Varada Pillai v. Jeevaratnammal 1919 PC 44, referred to this case and Lord Cave, delivering the judgment of the Privy Council, said:

Whether this rule (that is the rule that the possession of one part-owner is the possession of others) is applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it is unnecessary for the purposes of the present case to decide; for upon the facts of the case the rule has no application. The limits of the rule were defined in Culley v. Taylerson (1840) 11 Ad & El 1008 as follows,

and then refers to the passage which I have read from the judgment of Mukherji, J. It is perfectly clear in the first place that the mere fact of itself, that is to say, non-receipt of rents is not conclusive evidence of ouster by the co-sharer who is in possession. Even taking the facts together with the fact proved in this case, namely, the entry in the Record-of-Rights of Jan Ali''s name, it is a question, as Lord Denman said, for the jury (that is to say the Court of fact) to say whether they will presume that there has been an outser. But in my judgment in this case it was necessary to prove facts other than those which have been established here; to use the words of Mukherji, J.

Exclusion or ouster involves not merely the act of the person ousting but the state of mind of the person ousted. Knowledge on the part of the latter, therefore, is essential.

Now the position is this that in the first place something other than that which has been proved was necessary. The onus with regard to the matter was upon the defendants here who were setting up their adverse title. Even assuming that they had established all that was necessary in the circumstances, it was for the Court of fact to say whether in the circumstances an ouster could be presumed. Now that leaves only one question to be decided, namely, whether the learned Judge in the Court below has decided this as a question of law or whether he has taken the evidence into consideration and decided it as a question of fact. In my judgment the learned Judge here has not misdirected himself. He has stated, as Mr. Mahabir Prasad admits, the law correctly and has come to the conclusion that in the circumstances of the case no ouster was proved, and therefore the title which was set up by the defendants was not established. For those reasons, in my judgment, the decision of the learned Judge in the Court below is correct and the appeal therefore fails which must be dismissed with costs.

Rowland, J.

I agree. It is perhaps unfortunate that whereas the arguments in the case before the District Judge were concluded on 23rd July 1931; it was not till 6th February 1932, that he delivered his judgment. The findings at which the District Judge arrived were that the purchaser of the properties in suit was Khedan and not Rafiq; that the heirs of Khedan were Musiman, Safihan, Jumratan and Khedan''s cousin Jan Ali: that the entry of the properties in the Record-of-Rights and other papers in the name of Jan Ali and thereafter of Jumratan did not amount to ouster of the other co-sharers; and that on the death of Jumratan in 1928, Musiman and Safihan had good title to confer on the plaintiff by the sale-deeds, dated respectively 1st January 1929, 8th February 1929 and 30th May 19,29. Perhaps the long delay between the hearing of arguments and delivery of judgment may have something to do with the omission of the District Judge to consider in his judgment exhibit D, the lease taken in the name of Rafiq in 1890 of a portion of land for the building of a residential house. This has left a loop-hole to Mr. Mahabir Prasad to argue that the District Judge''s finding that the purchase of the property was by Khedan is not a proper finding of fact concluding the matter. It has been contended that had Ex. D been considered by the Courts below the conclusion should have been otherwise. In fact I do not think that, if the District Judge had considered Ex.D along with Exs. 2, A and B, it would have made any difference to his finding. He has on other grounds found the evidence of the witnesses for the defendants to be unreliable, and he has expressed a strong opinion as to the improbability of Rafiq taking the property in the farzi name of his father. I have no doubt that in the view that the District Judge was disposed to take of that transaction he would have had little hesitation in holding that it was more likely that the father should take property in the name of his son and that Rafiq''s name in Ex. D caused no difficulty in adhering to that view. It is then said that the District Judge''s finding is open to criticism because he has not considered the fact that exhibits A, B and D came from the custody of the defendants. Now this custody could be accounted for by the fact that there seemed to have been friendly relation between Jumratan and Kulsom and there is no improbability in the defendants thus having got the custody of the documents from Jumratan. It will be remembered that the defendants had set up a case of gift by Jumratan to the defendants. That case was negatived by the District Judge; but on the findings on the other issues it makes no difference whether Jumratan purported to give the property which she was holding only as a co-sharer, so that the failure of the District Judge to consider Exs. A, B and D is another matter having no effect on the validity of the findings.

The other finding that has been attacked is that the possession of Jan Ali and Jumratan did not amount to ouster of the other co-sharers. This point has been examined in detail in the judgment of my learned brother, and it is only necessary to say that I have no doubt the District Judge correctly applied the principle that where possession can be referred to a lawful title, it will not in the absence of very cogent reasons be deemed to be derived from usurpation I agree therefore that the appeal should be dismissed.