JUDGMENT
Ramaswami, J.
1. In the suit which is the subject of this appeal the plaintiff claimed that he was entitled to 16 annas share of Jagir of village Mardua, tauzi No. 2671. The plaintiff alleged that he was grandson of Bhikhari Missir, the previous Raj Purohit, that after the death of Bhikhari Mis-sir his widow Mt. Tota Kuer inherited all his properties. The relationship of the parties will appear from the following pedigree :
BHIKHARI MISSAR = MT. TOTA KUER
______________|_______________
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Sunderbaso Kuer Sita Kuer Sonjhari Kuer = Bewa
Dutt
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Govind Dutt(Plft). Gangadutt.
On 8th June 1901, a deed of agreement was executed between Govinddutt and Rewadutt and Mt. Sundarbaso as a result of which Rewadutt was given 4 annas share in properties belonging to Bhikhari Missir. in Aghan 1334 Fs. Ambika Singh father of Kumar Gopal Saran Narain Singh died. The plaintiff officiated as priest at the sradh and defendant No. 5 the Kumar granted to the plaintiff 16 annas proprietary share in village Mardua, tauzi No. 2671, as jagir by making sankalp and samarpan. Rewadutt had no title over any share of Mardua jagir but nevertheless he created a lease in favour of defendant No. 3 with respect to 8 annas share of the jagir. Rewadutt died in Katick 1349 Fs. and after his death defendants 1 and 2 who are his heirs interfered with the possession of the plaintiff. Plaintiff further alleged that defendants 1 and 2 had executed a fraudulent kebala in favour of defendant No. 4 with respect to 3 annas share. The plaintiff hence brought the suit for declaration of his title to eight annas share of the jagir of village Mardua and for recovery of possession thereof.
The main ground of defence was that Kumar Gopal Saran Singh had given village Mardua as jagir in equal shares to plaintiff and Rewadutt. After the death of Rewadutt defendants 1 and 2 had been in possession of 8 annas share either direct or through thicadars. It was asserted that the lease executed in favour of defendant no. 3 and the kebala executed in favour of defendant No. 4 were genuine and valid. The learned Subordinate Judge accepted the case of the defendants holding that at the time of the sradh, the Kumar had granted Jagir of village Mardua to the plaintiff and Rewadutt in equal shares, that the plaintiff was not entitled to a declaration of his right with respect to 8 annas share granted to Rewadutt. The learned Subordinate Judge accordingly dismissed the suit.
2. On behalf of the plaintiff who has preferred this appeal Mr. Lalnarain Sinha conceded ‘in limine’ that upon the state of the evidence the plaintiff was entitled to claim only 12 annas share of the jagir of village Mardua and that the plaintiff would not press his claim for 16 annas share as stated in the plaint. Learned counsel conceded that upon the proper construction of the deed of agreement dated 28th June 1901 (Ex. 4) Rewadutt had 4 annas share and Govinddutt 12 annas, share in the jajmanika birit. Learned counsel stressed the argument that at the time of the sradh the Kumar had made gift of the jagir to the Raj Puro-hit without specifying the exact share of Rewadutt or Govinddutt. It was contended that the learned Subordinate Judge ought to have accepted the plaintiff’s evidence and held that village Mardua was granted in jagir to the Raj Purohit and in consequence the plaintiff had 12 annas share in village Mardua and Rewadutt had the remaining 4 annas share. In my opinion, the argument addressed by the learned counsel is well-founded and must succeed. (After discussion of the evidence the Judgment proceeded 🙂 In my opinion, the evidence adduced on behalf of the plaintiff is. much superior to that given on behalf of the defendants and the finding of the learned Subordinate Judge that Rewadutt was given eight annas share of Mardua at the time of the Saradh cannot stand. I would accept the evidence adduced on behalf of the plaintiff and hold that at the time of the saradh Maharaj Kumar Gopal Saran Singh made a gift of village Mardua to the Raj Purohit without specifying what share Govinddutt or Rewadutt ought to enjoy therein.
3. But there is sufficient evidence on the record to suggest that after the gift was made, Govinddutt and Rewadutt jointly entered into possession of village Mardua, Govinddutt appropriating 12 annas share of the income and Rewadutt the remaining 4 annas share. (After discussion of the evidence the judgment proceeded 🙂
4. Upon this finding the question arises whether the plaintiff is entitled to a decree in ejectment. Mr. B. C. De pointed out on behalf of the respondents that the gift made by Maharaj Kumar Gopal Saran Singh ought to have been made by registered document under Section 123 of the T. P. Act, that since the gift was oral neither the plaintiff nor the defendants acquired any title to the property in dispute. Learned counsel therefore contended that the plaintiff not having proved his title ought not to be granted a decree in ejectment. Learned counsel urged that even with respect to the 12 annas share of village Mardua plaintiff cannot be granted a decree for joint possession with the defendants since no title by adverse possession has been specifically raised in the pleadings and no issue has been framed in the trial court. Learned counsel stated that there was no evidence to show that the plaintiff had asserted hostile title to 12 annas share of village Mardua openly and to the knowledge of Maharaj Kumar of Tikari Raj. In my opinion the argument of the learned counsel 1; misconceived and untenable. The question in this case is not whether plaintiff had established any title by ‘adverse’ possession to twelve annas share of Mardua jagir. The question is whether the plaintiff had a possessory title or interest in the estate of 12 annas share for which he ought to be granted a decree lor joint possession with the defendants. The principle applicable is that possession is good title against all but the true owner and a person in peaceable possession of land has, as against every one but the true owner, an interest capable of being inherited, devised or conveyed; see ‘ASHER v. WHITLOCK’, (1865) 1 QB 1 at p. 6.
The rule of English law that possession is good title against all but the true owner was adopted and enforced by the Judicial Committee in ‘SUN-DAR v. PARBATI. 12 All 51 (PC). The question in that case was as to the right to possession and partition between the plaintiff and defendant, of two widows of Baldeo Sahay, who having no child by either wife, adopted in 1875 his sister’s son, Premsukh to whom he also bequeathed his estate. Baldeo died in 1878, the widows taking the management of his property and maintaining the minor adopted son, who died in the following year 1879. The widows’ names were entered as joint propi-ie-tors of the village lands which had been Baldeo’s by orders of the revenue authorities in April 1880. On 15th May 1883, Sundar, the junior widow, sued the elder, Parbati, for a decree for partition, and complete possession, of a half share of the estate. The elder widow denied the plaintiff’s right to separate possession, alleging that she herself, as the elder, was entitled to be manager of the whole estate. The Subordinate Judge decreed the claim directing partition but on appeal to the High Court the plaintiff’s suit was dismissed on the ground that the widows could not maintain a suit founded on their possessory right to the property since they had not obtained any possession in their own right as widows of Baldeo Sahai. The Judicial Committee reversed the judgment of the High Court holding that the plaintiff was entitled to partition on the ground that the widows had a possessory title or interest in the estate, notwithstanding that a preferable title might exist in others through the deceased devisee; that the estate being jointly held by them was partible, and that either widow might maintain a suit for partition. Lord Watson observed at page 57 :
“If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman, cannot lawfully adopt his own sister’s son. But apart from that question and also from any question touching the legal effect of Baldeo Sahai’s will, the fact of joint possession by the two widows of the estates which belonged to the testator, ever since the death of Premsukh in 1879, appears to them to be sufficient for disposing of this suit in favour of the appellant. Their Lordships are at a loss to understand, at all events to appreciate the grounds upon which the Chief Justice endeavours to differentiate between the authorities which he cites, the import of which he correctly states, and the position of the parties to this action. Their possession was lawfully attained, in the sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of premsukh or of Baldeo sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of those possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible; and their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court ought to be reversed and that of the Subordinate Judge restored.’
5. In ‘ISMAIL ARIFF v. MAHOMED GHOUS’, 20 Cal 834 (PC) the Judicial Committee reiterated the principle that lawful possession of land was sufficient evidence of right as owner, as against a person who has no title whatever, and that the plaintiff was entitled to a declaratory decree and an injunction restraining the wrong-doer from Interfering with his possession.
6. The position is extremely well put in the following passage in Pollock and Wright on Possession, page 95 :
“It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to be in possession when the time of limitation expires. Reflection, however, shews this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. William is the possessor and apparent owner of a house; in that house he dies; we will suppose him to die intestate. John, wrongly supposing himself to be entitled as the heir of William, enters and occupies the house. Peter is really William’s heir, but ignorant of the facts; in course of time, having obtained information and advice, he sues John. It turns out that William had disseized Giles the true owner, by mere encroachment or in some other way, and would have had no answer to an action brought by Giles or his assigns to recover the land. But since William’s death the period of limitation has expired, and the right of Giles is extinguished. Can John use this as a defence against Peter? No, for the statute has nothing to say, for better or worse, about the person in actual possession, or the relative worth of the qualified rights to possess which may have arisen while time was running against the true owner. It says that Giles, and those who have or would have had his estate, shall not from henceforth sue anyone. It does not say that Peter shall not sue John. Whether some one else has a higher title or not, Peter has a better title than John, as he would have had though the true owner’s claim were still enforceable. In the language of the modern authorities, ‘possession is good title’ — nothing less ‘against’ all but the true owner'”.
7. In view of the principle established by the authorities I am of opinion that the plaintiff ought to be granted a decree to the effect that he is entitled to 12 annas share of the jagir of village Mardua and that he should be put in joint possession of this share along with the defendants 1 to 4 who are entitled to 4 annas share.
8. Upon these grounds I would allow this appeal set aside the decree of the lower Court and order that the plaintiff should be granted a decree as stated in the last paragraph, since the plaintiff had instituted the suit with an exaggerated claim (he will be granted only half the costs in both. Courts. The suit will be dismissed against defendant No. 5, ex parte.
Sarjoo Prosad, J.
9. I agree.