Rajinder Lall and Others vs Kuer Rai and Another

James, J.—This appeal arises out of a suit for declaration of title and confirmation of possession of a certain share in the estate bearing tauzi No. 3766 in Saran District. The property which is very small, is part of a share which was originally held in common by four brothers, Chhatar Rai, Prayag Rai, Jagu Rai and Bahadur Rai. Dudnath Rai, the predecessor-in-interest of the contesting defendants, obtained a mortgage decree in execution of which he brought to sale and himself purchased the share of two of the brothers, and Bahadur, together with a third interest described in his sale-certificate as that of Sona Kuer, widow of Suba Rai, the son of Prayag Rai, who was then deceased. Subsequently, one Sewa Rai sued the family on an earlier mortgage said to have been granted by Nandlal, one of the sons of Chhatar Rai, joining defendant, Dudhanath Rai, in which he obtained a decree.

This Sewa Rai was brother-in-law of Nandlal, a fact which led the Court to regard with some suspicion the admissions which were made on behalf of Nandlal and Ramdhari; but the suit was decreed against the shares of Chattar and Prayag, the question there having arisen of whether Dudnath Rai had, by his purchase, acquired the share of Prayag Rai, and that point having been decided against Dudnath Rai, the Courts accordingly awarded to Sewa Rai a mortgage decree against the shares of Chhatar Rai and Prayag Rai, with a reservation, which appears to have been forgotten by all parties, and to have escaped their notice until the case came in second appeal before the High Court, that the share of Chhatar Rai was subject to the lien of Dudnath Rai in respect of two mortgage deeds of 28th November 1894 and 6th June 1897.

However that may be, Sewa Rai did purchase the shares of Chhatar Rai and Prayag Rai; and the Courts below have found that by that purchase Sewa Rai obtained title to the share which he now claims. We know nothing of the two mortgages mentioned in the judgment of Sewa Rai''s mortgage suit; whatever may be the effect of that reservation, and the findings of the Courts below may be accepted that Sewa Rai by his purchase acquired title to the share which he now claims. In 1927, Sewa Rai''s surviving son, Sheopujan Rai, sold his share to the plaintiff. After the purchase in execution of the shares of Jagu Rai and Bahadur Rai, Dudnath Rai obtained mutation of his name in the Collector''s Register for the half-share. He subsequently obtained mutation for a larger share, though it is not clear from the evidence who was the parson whose share was reduced in order that Dudnath Rai might obtain this correct entry. The result was that Sewa Rai and Sheopujan Rai were recorded in Register D for a nominal share smaller than that which would be represented by the shares of Chhatar Rai and Prayag Rai.

The Munsif considering that the entries in Register D afforded evidence of possession and without any detailed examination of the record of actual facts of possession made in the Record of Rights, found that the suit was barred by limitation on the ground that the plaintiff had not been in possession of his share within the last twelve years.

The Subordinate Judge decreed the suit on the ground that since there had been no formal partition of this property, the possession of the defendants, who "were co-sharers of the plaintiffs'' should be treated as in possession on behalf of their co-sharers and that no limitation could run in their favour.

He therefore reversed the decision of the Munsif and decreed the suit. Mr. B.N. Mitter, on behalf of the appellants, points out that in the peculiar circumstances of this case the actual possession of one party should be held to be adverse to the other, since they are all of them intruders upon the property of an undivided joint family, against whom their possession was necessarily adverse from the beginning. Mr. B.P. Sinha incidentally points out from the Record of Rights that the plaintiff actually is in possession of a share in the property equivalent to that which he claims, though his share in the small collections of the area held by tenants may, owing to the entry in Register D, be less than half.

This case is not without difficulty and the position is certainly anomalous. It may be argued that the possession of a definitely small share as indicated by the entry in Register D and by the collections of rent, must in any event be treated as adverse, whether the opposite party is technically a co-sharer of the defendant or not. On the other hand, there is authority for the proposition that the possession of an unduly large amount of bakasht land in the estate ought not to be treated as adverse against co-sharers. The adoption of this principle would lead to the anomalous result that in applying the law of limitation notice should be taken of the symbolical possession enjoyed through the nominal share recorded in Register D, while the true facts of possession, of what the parties are actually in enjoyment, ought to be ignored in this connection.

The general rule, that possession by one tenant-in-common cannot, in the absence of special circumstances be treated as adverse to another tenant-in-common, should not, I think, be held to apply in this case, where the circumstances are such as to indicate that the possession of each must have been adverse to the other from the beginning. When Dudnath Rai purchased the share of Jagu Rai and Bahadur and entered into possession, this entry by an alienee from co-parceners into the property alienated, was adverse to the other co-parceners from the very moment of that entry: Abdul Gafur v. Ashmath Bibi 1920 Mad 160, when Sewa Rai purchased the shares of Chhatar Rai and Prayag Rai and entered into possession, his entry into whatever he did actually enter, was similarly adverse to the other co-parceners, who were parties to the litigation.

To that extent therefore the decision of the learned Munsif must be held to have been correct, though it would I think, be wrong to hold that he acted rightly in taking notice of the symbolical possession recorded in Register D and in the khewat, and in not taking into consideration the fact of actual possession as recorded in detail in the khatian. But this creates a position of some difficulty when the question of the form of the decree in the case has to be considered. The plaintiff can claim a decree because he has shown himself to be in possession of the share which he claims; but what he wants is a decree which will entitle him to claim possession of something more than his rightful share.

The defendants on the other hand may fairly take the position that since the plaintiff is already in possession of what he claims, he should not obtain a decree which will entitle him to claim anything more. Yet if the plaintiff''s suit was dismissed, it is possible that on a partition the defendant might on the strength of the entry in Register D be able to obtain possession of about half as much again as he is entitled to. The plaintiff is entitled to a declaration that his share in the estate is of the extent claimed in the plaint, and he is entitled to a decree for confirmation of existing possession; but he is not entitled to a decree which will enable him without partition to recover a larger share of the rent in the estate than he is collecting at present.

Therefore although if the assets are brought into the hotchpot, the plaintiff would be entitled to share in partition of 2 pies 12� krant he will not be entitled, without bringing into the hotchpot the land of which he is in separate possession, to collect from the tenants a larger share than he is at present collecting as recorded in Register D. Each party may bear his own costs throughout.