Ram Keshwar Mahton and Others vs Hari Charan Mahton and Others

Meredith, J.—This second appeal is by the defendants first party against a judgment of reversal decreeing the suit. The plaintiffs are the members of a joint family, and sued for declaration of title and recovery of possession after removal of certain encroachments said to have been made by the appellants on two plots of homestead land, one comprising 2 kathas 5 dhurs and the other comprising 16 dhurs immediately to the south thereof. Plot 1 was settled by the landlords on 22nd September 1925, by means of an unregistered patta, with a member of the plaintiffs'' family, Hari Narain, son of Jawahir Mahto, the then head of the family. This Hari Narain is since deceased, and his widow is defendant 19. Plot 2 was similarly settled by an unregistered patta on 24th March 1926 in the name of Hari Charan Mahton, plaintiff 1, who is son of Jawahir. The plaintiffs'' case was that actually both these settlements were made with the joint family, but the former was simply in the name of Hari Narain and the second in the name of Hari Charan.

On 15th March 1927, the landlords gave a similar unregistered patta for another 2 kathas 5 dhurs of land lying just to the north of the 2 kathas 5 dhurs already mentioned to one Shaikh Mohammad, and on 6th April 1939, defendants first party purchased this plot from Sheikh Mohammad. According to the plaintiffs, shortly afterwards defendants first party, the present appellants, began to construct a house on the plot settled with them, and while doing so made encroachments on both the plaintiffs'' plots. Shortly after this, on 10th January 1940, they took a kebala from defendant 19 Harinarain''s widow, in respect of the 2 kathas 5 dhurs settled in the name of Hari Narain, and this kebala was taken in the name of defendant 16 said to be benamidar merely.

The defendants'' case was that the settlement of the 2 kathas 5 dhurs in 1925 was made with Hari Narain who was then separate from the rest of the plaintiffs'' family. It was a settlement exclusively with him, the land was inherited by his widow and consequently the defendants acquired a good title by their purchase from the widow in 1940. They further alleged that this plot of 2 kathas 5 dhurs, which they had purchased, included the 16 dhurs of which the plaintiffs subsequently took settlement in the name of Hari Charan.

Both the Courts below have agreed in finding that the 16 dhurs was not included in the 2 kathas 5 dhurs, but lay to the south of it. It has also been found that the alleged encroachments had been made; indeed the defendants did not deny that. Rather, as I have said, they claimed title to and possession over the whole area. The learned Munsif held that the settlement had been made with Hari Narain, who was separate, and he accordingly dismissed the suit, but the learned Subordinate Judge reversed this finding. His finding, which is binding on us in second appeal, is that Hari Narain was a member of the joint family with his father and brothers, and that the father, that is Jawahir, acquired the lease for and on behalf of the joint family in Hari Narain''s name. He further held that the plaintiffs, who had already been in possession for more than 12 years, were entitled to recover possession for themselves and defendants 17 and 19. He accordingly "decreed the suit.

The only argument which has been addressed to us in second appeal is that the plaintiffs cannot succeed, because they have established no title in themselves. Even if the defendants have been found to have no title, nevertheless they are in possession, and the plaintiffs cannot eject them unless they establish their own title. A suit for declaration of title and recovery of possession can only succeed on the plaintiffs establishing their own title, and cannot succeed on the weakness of the defendants'' case. Here the plaintiffs have established no title, because the unregistered patta could convey none.

This argument, in my opinion, is not sound. The plaintiffs do not base their case on the patta. They have used the unregistered patta for a collateral purpose, namely to explain the nature of their possession and to show that they were not trespassers but in possession of the lands by arrangement with the landlords. Whether their title was a good title or not as against the landlords was a matter between them and the landlords, not one which concerned the defendants. The plaintiffs have been found to have been in possession ever since 1925 upto at least 1939, when the defendants, having obtained settlement of the plot to the north, are said to have encroached on the plaintiffs'' plot. This peaceful possession for a number of years is prima facie evidence of title sufficient to enable the plaintiffs to recover, unless the defendants can show a better title, whereas in fact the findings are that the defendants, unlike the plaintiffs, are mere trespassers. The legal position has been settled so far as this Court is concerned by several decisions which are binding upon us. In Ranjit Singh and Others Vs. Jhori Singh, a Bench of this Court held that though a person suing in ejectment can only recover by the strength of his own title and not by the weakness, in the title of his adversary, yet possession is prima facie proof of title u/s 110, Evidence Act, and previous possession is a good foundation for'' a suit in ejectment although the plaintiff who instituted the suit may not be able to establish any title in himself, provided that the defendant does not establish a better title to the disputed property. Similarly, in Bodha Ganderi Vs. Ashloke Singh and Others, another Bench observed that where a person who has been in possession of property for several years without title is dispossessed by another, who also has no title, the former is entitled to be restored to possession.

If I may say so with respect I entirely agree with the propositions laid down in these cases. It would, to my mind, be a monstrous thing to allow the defendants as pure trespassers to resist the claim of the plaintiffs to recover their possession simply because there may be a defect in the plaintiffs'' title as between them and the landlords which is no business of the defendants at all.

In may opinion, there is no merit in this appeal, and I would accordingly dismiss it with costs.

Sinha, J.

I agree, but I wish to add a few observations of my own in support of the conclusions arrived at by my learned brother. The position in this case appears to be this. The plaintiffs had been in possession of the property in question ever since 1925, when they purported to take a lease thereof from the landlords. They were dispossessed some time at the end of 1939, or in the beginning of 1940, as a result of the building operations commenced by the defendants first party, the appellants in this Court. Hence the competition in this litigation for possession of the property is between the plaintiffs, who have as against the whole world except their lessors a good title to remain on the property on the one hand, and the defendants first party, who are mere trespassers on the other. Mr. Mahabir Prasad on behalf of the appellants contended that in a suit in ejectment the plaintiffs must establish two things, firstly, their title, and secondly their possession within 12 years of the suit. That proposition is established by a Pull Bench decision of this Court in Raja Shiva Prasad Singh Vs. Hira Singh and Others, . Apparently that contention is well founded in law, but the case before us is in the nature of an exception to that class of cases in which the defendants themselves may have been in possession for a series of years and before their possession began the plaintiffs may have been in possession for an equal period of time. In suck a case the competition for possession is between two parties who on the face of the statements given above, would be in the same position, namely holding possession for a period of time without any apparent title. In such a case the present possession must decide the issue between the parties. But in the present case if the lessors themselves were to institute a suit for possession against the plaintiffs on the ground that they were holding without title, in my opinion they could have resisted such a suit successfully by the operation of Section 53A, T.P. Act. They could have used their unregistered patta as a shield against the landlords'' assault on their title, because we have been informed the patta is a complete document containing all the terms of the lease, the only defect in the patta being that it is not a registered document. That being so, in my opinion the plaintiffs not only have a good title against the whole world but even a good title against their lessors to remain on the property. On the other hand, the defendants in possession have taken the law in their own hands and forcibly dispossessed the plaintiffs, and therefore the Courts of law must help the plaintiffs to regain possession of the property of which they had been unlawfully deprived. On these considerations, in my opinion, there is no conflict between the principle on the basis of which this suit has been decided and that line of cases which is illustrated by reference to the Full Bench decision referred to above. In my opinion, therefore, the Court of appeal below has taken a correct view of the legal position, and the suit for possession has been rightly decreed.