1969 Supreme(Bom) 49

IN THE HIGH COURT OF BOMBAY
Tarkunde and N.P.Nathwani, JJ.
Appellants: Mariumbi Aslamkhan and Anr.
Vs.
Respondent: Vithoba Yeshwanta and Ors.
A.F.O.D. No. 182 of 1961 Decided On: 15.07.1969
Counsels:
For Appellant/Petitioner/Plaintiff: S.P. Kurdukar, Adv.
For Respondents/Defendant: S.G. Deshmukh and R.W. Adik, Advs.

A person in possession of land without any other title thereto and who is dispossessed by the defendant, is entitled to recover possession if the defendant is not able to show a better title.

Headnote:

POSSESSION - ADVERSE POSSESSION - TITLE - POSSESSION AS LIMITED TITLE - DISTINCTION BETWEEN POSSESSION AS PRIMA FACIE EVIDENCE OF OWNERSHIP AND POSSESSION CONSTITUTING LIMITED TITLE - SUIT ON POSSESSORY TITLE - DISTINCTION FROM SUIT UNDER SECTION 6 OF SPECIFIC RELIEF ACT, 1963 - OBITER OBSERVATIONS OF BROOMFIELD J. IN GOVINDBHAI LALLUBHAI PATEL V. DAHYABHAI NATHA-BHAI PATEL, 38 BOM LR 175, HELD TO BE BAD LAW IN VIEW OF SUPREME COURT DECISION IN NAIR SERVICE SOCIETY LTD. V. ALEXANDER, AIR 1968 SC 1165.

Fact of the Case:

Plaintiffs, wife and minor daughter of Fakir Mohammed Khan, filed a suit for possession and mesne profits of agricultural lands situate at village Patharwala Bujurg in the Bhir district. The lands originally belonged to the ancestors of some of the defendants, but were in the possession of Fakir Mohammed Khan and his brother Din Mohammed Khan and the latters sons Aslamkhan and Mominkhah for a period of more than 20 years before 1948. Two or three months prior to the Police Action (which took place in September 1948); Fakir Mohammed Khan and his sons Aslamkhan and Mominkhan were murdered and their house was looted and burnt. Fakir Mohammed Khans brother Din Mohammed Khan had been murdered sometime earlier. At the time of the murders of Fakir Mohammed Khan, Aslamkhan and Mominkhan, the first plaintiff escaped from the house with her minor daughter the second plaintiff and took refuge in the territory of the Indian Union. A couple of months after the Police Action, the first plaintiff went back to the village Patharwala Bujurg with her father. When she found that the defendants had taken possession of the agricultural lands of the family and were cultivating them jointly. Through the good offices of the Afgan Embassy the first plaintiff applied to the Government of the Hyderabad State for the restoration of the lands, but after a good deal of correspondence, she was advised by the Hyderabad Government to approach the Civil Court for redress. Hence the present suit was filed in forma pauperis by the two plaintiffs on 6th September, 1956.

Finding of the Court:

The court held that the plaintiffs predecessors (Fakir Mohammed Khan, Aslamkhan and Mominkhan) were in possession of the suit lands for a number of years prior to 1948. The court also held that the defendants had failed to prove that the lands had been mortgaged with Fakir Mohammed Khan by the defendants, ancestors or that the mortgages had been redeemed with the consent of the first plaintiff as alleged by the defendants. However, the court also held that the plaintiffs title to the suit lands was also not proved, as the plaintiffs had failed to show how the lands were acquired by Fakir Mohammed Khan or his brother Din Mohammed Khan from the predecessors of the defendants who were the original owners of the lands.

Issues: 1. Whether the plaintiffs have established their title to the suit lands by adverse possession? 2. Whether the defendants have a better right to possession than the plaintiffs? 3. Whether the plaintiffs are entitled to mesne profits for the period of three years prior to the suit?

Ratio Decidendi: 1. The court held that the plaintiffs have established their title to the suit lands by adverse possession. The court relied on the evidence that Fakir Mohammed Khan had been in possession of the suit lands for at least 20 years before 1948, that his possession was open, exclusive and continuous and that it was not traceable to any permission given by the defendants predecessors who were the original owners of the lands. 2. The court held that the defendants do not have a better right to possession than the plaintiffs. The court noted that the defendants had trespassed on the lands after the Police Action and that they did not enter into the possession as a result of any agreement with the first plaintiff. 3. The court held that the plaintiffs are entitled to mesne profits for the period of three years prior to the suit. The court directed the trial court to ascertain the lands which were in the possession of each of the defendants for the period of three years prior to the suit and the amount of mesne profits to which each of them is liable.

Final Decision: The appeal was allowed, the decree of the trial Court was set aside and the defendants were directed to deliver possession of the suit properties to the plaintiffs. Regarding mesne profits, the trial Court was directed to ascertain the lands which were in the possession of each of the defendants for the period of three years prior to the suit and the amount of mesne profits to which each of them is liable.