Patna High Court
Ranjit Singh And Ors. vs Jhori Singh on 1 November, 1928
Equivalent citations: 119IND. CAS.906, AIR 1929 PATNA 601
JUDGMENT Das, J.
1. In this suit the plaintiff claims to recover possession of a mining property known as Chaili Pahari. He bases his title on a conveyance of 17th May, 1918, executed in his favour by one Barho Rai who appears to be a khorposhdar of the Tikait of Doranda. It is not disputed that the transaction of 17th May, 1918, conveyed to the plaintiff a 21/2 pies share in Mama Maheshmarwa. The plaintiff claims to have been in possession of the disputed property from 15th January, 1921, up to 16th March, 1921. It appears that he did not work the mine from 16th March, 1921; but he contends that he commenced to work the mine again from 25th May, 3824, and continued to work it up to 6th September, 1924, when he was forcibly dispossessed by the defendants with the help of the Police. It appears that the defendants succeeded in satisfying the Magistrate in a proceeding under Section 145, Criminal Procedure Code, that they were in possession of the disputed property; but it is not disputed that the plaintiff was not a party in that proceeding, so that it must be held that the dispossession of the plaintiff was a forcible one.
2. The defendants based their title on a conveyance of 31st May, 1913, executed in favour of Chagan Lal Nagar by Chirangi Rai who appears to have been another of the khorposhdars of the Tikait of Doranda. By the transaction of 31st May, 1913, a 16 annas interest in the entire mauza was transferred to Chagan Lal Nagar, although it is admitted that Chirangi Rai had no more than in annas 8 pies interest there. The Court of first instance found in favour of the defendants and dismissed the plaintiff's suit. The learned Judge in the Court of Appeal below has reversed the decision of the Court of first instance and has given the plaintiff a decree substantially as claimed by him.
3. The first point taken by Mr. C.C. Das on behalf of the defendants appellants is that the plaintiff has no title whatever to the disputed property and that his action must fail. The contention is founded on the admitted fact that the conveyance in favour of the plaintiff was executed by one who was admittedly a khorposhdar of the Tikait of Doranda. Mr. Das argues that it is well understood that a khorposhdar has no underground rights whatever and that therefore, the plaintiff has not acquired any underground rights although he may have acquired certain rights, to the surface with which we are not concerned in this litigation. The argument as formulated by Mr. C.C. Das cannot be accepted, for I know of no law which lays down that a khorposhdar cannot acquire by express grant a right to the minerals. It is quite true that a grant without express words will not convey the underground rights to a khorposhdar, but we have no evidence in this case as to whether the grant in favour of Barho Rai included the mineral rights or not. It is, however, not necessary to found my decision on this view of the law, for in my view the plaintiff is entitled to succeed in this action provided he establishes that he was in peaceful possession of the disputed property prior to the forcible dispossession of 6th September, 1924, and provided the defendants have not succeeded in establishing a title to the disputed property. Mr. C.C. Das relies upon the well-known doctrine that a person suing in ejectment can only recover by the strength of his own title and not by the weakness in the title of the adversary. That proposition may be accepted as well-founded, but possession is prima -fade proof of title, and it is well established that 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 (and this is an important provision) that the defendant does not establish a better title to the disputed property In support of this proposition I may refer to the decision of Sir Michael Roberts Westropp in Premraj Bhayinirau v. Narayan Shivaram 6 B. 215. In that case the learned Chief Justice of the Bombay High Court laid down that "possession is a good title against all persons except the rightful owner, and entitles the possessor to maintain ejectment against any other person than such owner who dispossessed him."
4. This decision was followed by Sir Lawrence Jenkins in Hanmantrao v. Secretary of State 25 B. 287 : 2 Bom. L.R. 1111. In the course of his decision Sir Lawrence Jenkins refers to a judgment of Mitter, J., in Shama Soonduree Debia v. Collector of Maldah 12 W.R. 164, where the following principles were enunciated by that very distinguished Judge:
If the plaintiff can prove that she was in possession of the property in dispute until she was ousted by the defendant against her consent, and without the intervention of a Court of Law, the defendant ought to be called upon to prove his title. If the defendant succeeds in proving his title, the plaintiff ought then to be required to prove a better one. That evidence of possession, however short, is evidence of title, is an undisputed proposition of law, and it, therefore, follows that such evidence is at least sufficient to make out a prima facie case in favour of the party by whom it is given.
5. Mr. Das referred to the decision of Woodroffa and Mookerjee, J J., in Ram, Chandra Sil v. Ramanmani Dasi 36 Ind. Cas. 890 : 20 C.W.N. 773, but the point that was really established in that case is that a plaintiff in an ejectment suit can only succeed by the strength of his own title. I do not read the judgment of Woodroffe, J., as going beyond this. Mookerjee, J., no doubt says as follows in the course of his judgment; "The plaintiff can, consequently, succeed, only upon proof of title and not merely by proof of possession. It is well settled in this Court, by decisions which are binding upon us, that mere previous possession will not entitle a plaintiff to a decree for recovery of possession, except in a suit under Section 9, Specific Relief Act."
6. With all respect to that very distinguished Judge, I do not think that the proposition is very correctly laid down in this passage. I have already referred to the judgment of Mitter, J., reported as Shama Soonduree Debia v. Collector of Maldah 12 W.R. 164, which certainly lays down a proposition different from that which is accepted by Mookerjee, J. in the case to which I have just referred and which, by the way, is not referred to in the judgment of Mookerjee, J. It is also worthy of note that the decisions of the Bombay High Court by the very distinguished Chief Justices of that Court are also not referred to in the course of the judgment of Mookerjee, J. The view which has found favour in the Bombay High Court has been accepted as well-founded by the Chief Justice of this Court in Bodha Ganderi v. Ashloke Singh 98 Ind. Cas. 779 : A.I.R. 1927 Pat. 1 : 5 Pat. 765. The learned Chief Justice held 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."
7. That this proposition is not in conflict with the other proposition which is equally well-established, namely, that the plaintiff in an ejectment suit can only succeed by the strength of his own title, is apparent if reference is made to Section 110, Evidence Act, which provides; "When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
8. Now, how does the position stand on Section 110, Evidence Act? The plaintiff brings a suit in ejectment. It is quite true that he can only succeed by the strength of his own title He satisfies the Court of facts that, he was in possession of the disputed property before he was forcibly dispossessed. Section 110 assumes that he must be taken to be the owner till the contrary is established. It follows, therefore, that if the case attracts the operation of Section 110 of the Evidence Act, the onus must be upon the defendants to show that the plaintiff who has proved that he was in possession before his forcible dispossession is not entitled to the disputed property.
9. Then the question is, has the plaintiff satisfied the Court of facts that he was in possession of the disputed property prior to the 6th September, 1924? The Courts of fact have differed in their view of the evidence; but we are conclusively bound by the view of the lower Appellate Court on a question of this nature. Mr. Das contended before us that the judgment of the learned Subordinate Judge on this question is not in accordance with law and that he has not considered many important matters which were considered by the Court of first instance. It is impossible for us to say that because the learned Judge has not referred to all the evidence in the case, he has not considered all that evidence. I find it in possible to accede to the argument of Mr. Das that we should regard the judgment of the lower Appellate Court as one which is not in accordance with law. I hold, therefore, that the finding of the learned Subordinate Judge that the plaintiff was in possession of the disputed property on the 6th of September, 1924, and that he was forcibly dispossessed on that date is binding on us in second appeal.
10. The question then arises, have the defendants shown by the evidence which they have adduced either that the plaintiff has no title to the disputed property or that they have a better title? Now they have certainly not shown that the plaintiff has no title. All that Mr. Das contends in this connexion is that the plaintiff's grantor being a khorposhdar, it must follow, as a matter of law, that the plaintiff has no title to the underground rights; but, as I have said, this contention is not well-founded. So far as the title of the defendants is concerned, it is admitted that the documents stand in the name of Chagan Lal Nagar and the learned Judge in the Court of Appeal says as follows:
There is hardly any evidence worth the name to show how the defendant acquired any right from Chagan Lal Nagar, the lessee under Ex A. The defendant has, therefore, no locus standi to oppose the plaintiff's case.
11. Even if we should ignore this finding of fact, it does not follow that the defendants have a better title to the disputed property. The plaintiff is in possession of a certain mine known as Chaili Pahari. Chagan Lal Nagar, no doubt, obtained a conveyance of a 10 annas 8 pies share in the mama, but it has not been established by the defendants that this mine Chaili Pahari is included within the 10 annas 8 pies share which belonged to Chirangi Rai and which he conveyed to Chagan Lal Nagar. It follows, therefore, that the defendants have not established a better title to the disputed property.
12. In my opinion, upon the findings of fact at which the learned Judge has arrived, this appeal must fail and must, therefore, be dismissed with costs.
Ross, J.
13. I agree.