Pandit Chandi Misser vs Narsingh Roy and Ganga Ram and Others

Atkinson, J.—This second appeal comes before me from the decision of the District Judge of Saran, affirming the decree granted to the plaintiff in this suit by the Munsif. The action was brought by the plaintiff claiming possession of a pucca house thatched with tiles situated in Mauza Siwan. The plaintiff bases his title upon a kobala, dated the 18th of December 1913 executed by defendant No. 4 and defendants Nos. 5 and 6. Prior to the execution of this kobala defendants Nos. 4, 5 and 6 were in possession of the premises. That fact has been found by the learned Judge. The learned Judge has found that they were in lawful possession and were registered in the demand register as being the persons in occupation of the premises. In paragraph 2 of the plaint the plaintiff sets out the nature of the title under which he claims possession in the following words:

�That the defendant No. 4 on her own behalf, and the defendant No. 5 on his own behalf and as the manager of the family and as guardian of the defendant No. 6, sold to the plaintiff under a registered deed of sale, dated 18th December 1913...on receipt of consideration money as specified therein a house including sahan, etc." And he alleges that he was put in possession of the said house by the vendors and the learned Judge finds as a fact that the plaintiff entered into possession of the said house. Subsequently the defendant No. 1 took possession of this house, behind the plaintiff''s back during way of defence to this action, sets up a counter-title under a kobala, dated the 12th of February 1914, executed by defendants Nos. 2 and 3 in his favour. It has been conclusively found by the lower Appellate Court that defendants Nos. 2 and 3 had no title whatsoever to make the grant of the 12th of February 1914 to defendant No. 1. Thus defendant No. 1 having failed to establish the title under which he claimed, he is only a trespasser. In paragraph 7 of the written statement defendant No. 1 sets out precisely the title under which he claims. He says: "that about two years ago Musammat Ram Sakhia died without any issue and then the defendants Nos. 2 and 3 as next-of-kins, relatives and legal heirs of the said Ram Kishen entered into possession of the disputed house arid of the other properties left by him. They (that is, defendants Nos. 2 and 3) sold to this defendant, namely defendant No. 1, the disputed house along with the other house, adjoining the house of this defendant which was left by him (Ram Kishen)." That defence has been found to be false by the learned Judge; inasmuch as the learned Judge in the lower Appellate. Court has found that defendants Nos. 2 and 3 are not the agnates of Ram Kishen; and that thus defendant No. 1 has failed to establish the tille he claims through the alleged agnates of Ram Kishen. Consequently it is clear that the defendant''s possession is that of a trespasser; and that he dispossessed a person who was in lawful possession under a title which he has established, and that thus the plaintiff having a possessory title is entitled to eject the defendant, A person having bare possession can eject a mere "trespasser, so long as his possession is clear and conclusive. A case will be found reported as Glenwood Lumber Company Ltd. v. Phillips (1904) A.C. 405 ; 73 L.J.P.C. 62 ; 90 L.T. 741 ; 20 T.L.R. 531 and at page 410 their Lordships of the Privy Council say: "it is a well-established principle in English Law that possession is good against a wrongdoer and the latter cannot set up a jus tertii unless he claims under it." In this case the defendant has set up a, jus tertii but he has completely failed to establish his right and thus is liable to be ejected as a trespasser. To the same effect is the decision reported as Perry v. Clissold (1907) A.C. 73 ; 76 L.J.P.C. 19 ; 95 L.T. 890 ; 23 T.L.R. 232 and at page 79 their Lordships say: "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner." Likewise will be found the authority of the case reported as Haradhan Mandal Moduli v. Iswar Das Marwari 38 Ind. Cas. 797 ; 2 P.L.J. 61. Therefore on this ground, in my opinion, defendant No. 1 having failed to establish his claim of title, the plaintiff is entitled to a decree for possession. A good deal of time has been devoted before me to the discussion as to the relative claims of Musammat Kauli and defendants Nos. 5 and 6 as to whether they were or were not the agnates of Ram Kishen or of Satyanarayan Ram. In my opinion it is unnecessary to go into that question; although I have been asked by Mr. Lakshmi Narayan Singh on behalf of the appellants to remand the case with a view to ascertaining whether there were agnates of Ram Kishen surviving on the death of his wife or on the death of his daughter Sakhia. It would be a novel procedure to remand the case for any such enquiry upon the request of a trespasser who has not a shred of title entitling him to the determination of a question in which he has no earthly concern. If there are agnates of Ram Kishen in existence, it will be open to them to come forward at some future time and contest the title of the plaintiff who has derived his title from Musammat Kauli and defendants Nos. 5 and 6. I know of no authority in law which gives a trespasser the right to ask a Court to remand a case for an enquiry in which the trespasser, defendant No. 1 in this case, has no earthly interest Whatsoever. All that I know is that the plaintiff claims under a kobala executed by defendants Nos. 4, 5 and 6, namely, the persons in possession at the time of the execution of the kobala and that by virtue of that kobala the plaintiff acquired possession in fact; and that accordingly he is entitled to the decree which has been awarded to him. I decline to remand the case on the ground put forward by Mr. Lakshmi Narayan Singh. I think most of the argument put forward by Mr. Lakshmi Narayan Singh as to the position occupied by a daughter''s son under the Hindu Law of inheritance is misconceived. 1 have had the opportunity of reading the able judgment of Mr. Justice Mitter reported as Amrita Kumari Debi v. Lakhinarayan Chucker butty 2 B.L.R. (F.B.) 28 ; 10 W.R. 76 which illustrates the history of the law of Hindu inheritance; but I think that a case will be found reported as Karuppai Nachiar v. Sankaranarayanan Chetti 27 M. 300 ; 13 M.L,J, 398, which gives a daughter''s son a higher place than that of mere cognate. In the case reported as Karuppai Nachiar v. Sankaranarayanan Chetti 27 M. 300 ; 13 M.L.J. 398 their Lordships give the daughter''s son a higher place than even an agnate. Mulla in his �Principles of Hindu Law� says: Although the practice of appointing a daughter to raise up an issue for her father became obsolete, a daughter''s son continued to occupy the place that was assigned to him in the order of inheritance and even now he takes a place practically next after male issue, the widow and daughters being simply interposed during their respective lives. The difference in his position under the old law and the present law is that under the former he became by a fiction of law a member of his maternal grandfather''s family, while under the present law he is a member of his own father''s family and is also regarded as a son''s son to his maternal grandfather for the purposes of inheritance." Thus I think that Musammat Kauli and defendants Nos. 5 and 6 occupied at the date of the execution of the kobala of the 18th December 1913 a position much higher than the class of persons termed cognates. However, I think it unnecessary to further pursue this question inasmuch as I have held that the plaintiff holds the disputed house under a valid title and is in possession of same under such title and hence is, as against defendant No 1 who is a mere trespasser, entitled to the decree for possession. Accordingly I hold that the judgment of the lower Appellate Court is right and that the judgment of the learned Munsif is also right; and I disallow this appeal with costs in this Court, in the lower Appellate Court and in the Munsif''s Courts.