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Jitendra Nath Mondal v. Nandalal Dass
Factual and Procedural Background
This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, Asansol, District Burdwan. The plaintiff's case was that the disputed property belonged to Kamaruddin Molla who sold it to the plaintiff's father on 6-3-1933. On 17-11-1938 defendant 1 purchased the disputed property in Execution Case No. 103 of 1938 against the heirs of Kamaruddin. The plaintiff alleged he was dispossessed on 8-1-1939 by defendant 1 at the time defendant 1 took possession in that execution. The plaintiff had earlier applied under Order 21, Rule 100 of the Civil Procedure Code (CPC), which was dismissed on 13-5-1939, and thereafter filed the suit for declaration of the plaintiff's nishkar right in the suit land, for khas possession on demolition of huts erected by defendant 1, and for permanent injunction.
At trial the Court concluded (inter alia) that the property belonged to Enayet Ali (father of Kamaruddin), that the plaintiff's father's 1933 purchase from Kamaruddin was not benami, that defendant 1's auction purchase did not vest title because the judgment-debtor had no saleable interest, that the plaintiff and his father were in exclusive possession, that the plaintiff was dispossessed on 8-1-1939, and that defendant 1 was estopped from challenging title and possession; the suit was decreed in full.
Defendant 1 appealed. The lower appellate Court held that the property belonged to Enayetulla and on his death devolved on his son Kamaruddin, widow Nabijan and daughter Shajadi; that Nabijan's and Shajadi's shares were not lost by adverse possession because Kamaruddin's possession was on behalf of them; that Kamaruddin's 7/12th share passed to the plaintiff's father by the 1933 purchase (not benami); and that, because the plaintiff sued for khas possession, he could succeed only on strength of his title. The appeal was allowed in part: the plaintiff's title was declared only to the extent of a 7/12th share, the plaintiff was directed to obtain joint possession with defendant 1, the other prayers were disallowed, and costs were apportioned.
The plaintiff appealed to this Court challenging primarily (1) the appellate Court's factual framing (title said to be with Enayetulla), (2) the refusal to grant relief for the whole property despite alleged long possession, and (3) the proposition that a suit under Order 21, Rule 103 CPC cannot succeed merely on proof of possession/dispossession.
Legal Issues Presented
- Whether the lower appellate Court wrongly framed or introduced a different case of title by treating the title as belonging to Enayetulla (i.e., whether the appellate Court impermissibly made a new case of title).
- Whether a plaintiff (or his vendor) in prolonged exclusive possession of the whole property can obtain a decree for the whole of the property against a defendant who is a trespasser, even though the plaintiff's legal title extends only to a co-shared portion (here 7/12th).
- Whether a suit under Order 21, Rule 103 of the CPC can be maintained (and succeed) by merely proving possession and dispossession at the relevant date, without proving the plaintiff's substantive right to possession (i.e., whether Rule 103 permits success on possession alone similar to Section 9 of the Specific Relief Act).
Arguments of the Parties
Appellant's Arguments
- The lower appellate Court made a new case by finding that title was with Enayetulla, which the appellant contends was improper.
- Because the plaintiff and his father had long possession of the whole disputed lands, the plaintiff should be entitled to a decree for the whole property even though his legal title was limited to a 7/12th share; defendant 1 was a mere trespasser.
- The suit being (allegedly) one under Order 21, Rule 103 CPC, the plaintiff could succeed by proving possession at the date of alleged dispossession since the dispossessor was a mere trespasser and the plaintiff had some title.
Respondent's Arguments
- It was contended (by Mr. Jagadish Chandra Ghose for the respondent) that the Province of Bengal, which was in substance the decree-holder at whose instance the sale (at which defendant 1 purchased) had been held, was a necessary party to the suit under Order 21, Rule 103 CPC. (The Court stated it was not necessary to decide this contention for the disposal of the appeal.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 50 C.W.N 477 : 81 C.L.J 1071 | That a plaintiff suing in ejectment can only succeed on the strength of his own title; defendant need only deny the plaintiff's title in the written statement. | The Court relied on this to reject the appellant's first contention that the appellate Court improperly framed a new title; it affirmed that denial of title in pleadings is sufficient and the plaintiff must succeed on his own title. |
| 14 C.W.N 141 | Instances where previous peaceful possession gave rise to an inference of exclusive title sufficient to maintain a suit for recovery of possession against trespassers (on the facts where exclusive title was in fact proved). | The Court observed that this decision must be read in light of its facts (where exclusive title was established) and therefore it did not support the appellant's claim to recover the whole when his claimed title was only to a share. |
| 58 Cal. 29 | That the right to eject defendants did not rest merely on bare and unexplained prior possession but on possession by virtue of a title derived from the maliks of the lands. | The Court used this to show that bare prior possession is insufficient and that title — or possession by virtue of title — is required, undermining the appellant's argument that prior possession alone could secure the whole. |
| 38 C.W.N 435 : 61 Cal. 4194 | These decisions were discussed in the context of prior possession and its limits; one of the cited authorities states mere previous possession will not entitle a plaintiff to recovery except under Section 9 of the Specific Relief Act. | The Court noted these decisions do not assist the appellant's broad proposition; they confirm that mere prior possession is generally insufficient unless within the scope of Section 9 Specific Relief Act. |
| 49 C.L.J 83 | Case law dealing with a co-sharer seeking recovery of the whole property; held that a co-sharer's prior possession does not entitle him to more than his share. | The Court applied this line to the facts here (plaintiff's vendor was a co-sharer), holding the plaintiff could not eject a co-sharer or obtain the whole on mere prior possession. |
| 40 C.W.N 816 | Another decision affirming the view that a co-sharer's prior possession does not justify recovery of the entirety beyond the co-sharer's share. | Used to reinforce the proposition applied in 49 C.L.J 83 and to reject the appellant's attempt to claim the whole on the basis of possession. |
| 16 I.A 1867 | Referenced in discussion (per Naaim Ali, J.) as not authority for the proposition that one can eject a trespasser from the whole when not defending one's possession. | Cited by the Court (via quotation) to show limiting principles: a dispossessed person who does not sue under Section 9 Specific Relief Act cannot succeed except on the strength of his title. |
| 44 Mad. 2278 | Authority supporting the view that Order 21, Rule 103 CPC is wider in scope and not confined to mere possession inquiries like the summary rules (98–101). | The Court relied on this to distinguish Rule 103 from summary possession inquiries and to hold that Rule 103 requires proof of right to possession, not merely proof of possession. |
| 17 Pat. 161 | Another authority cited in support of the view that Rule 103 entails a broader inquiry into the right to possession. | Used alongside 44 Mad. 2278 to support the Court's interpretation that Rule 103 is not equivalent to a Section 9 Specific Relief Act proceeding. |
| A.I.R. 1932 ALL. 703 | Held that a suit under Order 21, Rule 103 CPC is not akin to a suit under Section 9 of the Specific Relief Act; plaintiffs cannot succeed by merely showing possession and dispossession. | The Court cited this directly to reject the appellant's third contention, concluding that Rule 103 requires establishment of the right to possession and not mere proof of possession at the date of dispossession. |
Court's Reasoning and Analysis
The Court addressed the appellant's contentions in sequence.
- First contention (alleged new case of title with Enayetulla): The Court observed that the trial Court's remark that "it is almost an admitted case that the disputed property did belong to Kamaruddin Molla" was not correct because the defendant had traversed both title and possession and an issue was properly joined ("Has the plaintiff any right, title or interest in the disputed properties?"). The Court relied on the authority in 50 C.W.N 477 : 81 C.L.J 1071 to state the settled proposition that a plaintiff suing in ejectment must succeed on the strength of his own title and that mere denial in the written statement suffices; thus the first contention failed.
- Second contention (recovery of whole on long possession despite title to a share): The Court rejected this contention as contrary to settled law. It examined the cases relied upon by the appellant (including 14 C.W.N 141 and 58 Cal. 29) and explained that those authorities either involved factual situations where exclusive title was established or required possession by virtue of title. The Court emphasized that earlier decisions holding that prior possession may give rise to an inference of title applied where possession was exclusive; by contrast, in this case the appellate Court had found that Kamaruddin's possession was not exclusive but on behalf of co-sharers (mother and sister), meaning the plaintiff's vendor was a co-sharer and could not claim more than his share. The Court relied on authorities such as 49 C.L.J 83 and 40 C.W.N 816 to support the proposition that a co-sharer cannot recover the entirety based on prior possession.
- Third contention (suit under O.21, R.103 CPC can succeed on proof of possession/dispossession alone): The Court noted the suit was not strictly in terms of Order 21, Rule 103 CPC but, even assuming it was, the plain words of Rule 103 require the plaintiff to "establish the right which he claims to the present possession of the property." The Court drew a clear distinction between the summary proceedings under Rules 98–101 (which are focused on possession) and Rule 103 (which is wider and concerns right to possession). The Court cited decisions (44 Mad. 2278, 17 Pat. 161 and A.I.R. 1932 ALL. 703) holding that Rule 103 is not akin to a suit under Section 9 of the Specific Relief Act and that a plaintiff cannot succeed in a Rule 103 suit merely by proving prior possession and dispossession; the plaintiff must establish his substantive right to possession. Accordingly the third contention failed.
The Court also observed that it was unnecessary, for the purpose of deciding the appeal, to consider the respondent's contention that the Province of Bengal (the decree-holder at whose instance the sale took place) was a necessary party to the suit.
Holding and Implications
Holding: The appeal fails and is dismissed. The Court ordered dismissal of the appeal with costs. APPEAL DISMISSED.
Implications: The practical consequence is that the appellate Court's decision stands — the plaintiff's title was recognized only to the extent of a 7/12th share and he was directed to obtain joint possession with defendant 1; the remaining prayers were refused and costs were apportioned as in the appellate order. The opinion does not state any broader precedent beyond applying existing authorities to reject the appellant's contentions; accordingly, no new principle of law was announced by this decision beyond its application of the cited authorities to the facts of this case.
1. This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, Asansol, District Burdwan.
2. Briefly stated, the plaintiff's case is that the disputed property belonged to Kamaruddin Molla who sold the same to plaintiff's father on 6-3-1933. On 17-11-1938 defendant 1 purchased the disputed property in T. Execution case No. 103 of 1938 against the heirs of Kamaruddin. The plaintiff having being dispossessed on 8-1-1939 by defendant 1 at the time of taking possession in the said execution case, the plaintiff filed an application under O. 21, R. 100 of the CPC, which was dismissed on 13-5-1939. The plaintiff accordingly filed the suit for declaration of the plaintiff's nishkar right in the suit land and for khas possession on demolition of the huts erected by defendant and for permanent injunction.
3. The suit was contested by defendant 1 mainly on the ground that the plaintiff's kobala was a benami transaction, that the plaintiff or his father had no possession, that the Province of Bengal who had got the disputed land sold for non-payment of court-fees and at which defendant 1 purchased, was a necessary party. The trial Court held that the property belonged to Enayet Ali, father of Komoraddi, that the plaintiff's father's purchase from Kamaruddin was not a benami one, and this purchase being prior to that of defendant 1 the latter did not acquire any title by his auction purchase of the interest of Kamaruddin's heirs, the judgment-debtor having no saleable interest at the time; that the plaintiff and his father were in exclusive possession, the other heirs of Enayetulla did not claim any title or possession, that the plaintiff was dispossessed: on 8-1-1939; that defendant 1 was estopped from challenging the exclusive title and possession to the plaintiff. In the result the plaintiff's suit was decreed in full.
4. Defendant 1 preferred an appeal.
5. The lower appellate Court found that the disputed property belonged to Enayetulla, and on Enayetulla's death, devolved on his son Kamaruddin, his widow Nabijan and his daughter Shajadi; that the shares of Nabijan and Shajadi were not lost by adverse possession, the possession of Kamaruddin was possession on behalf of Nabijan and Shajadi, Kamaruddin's share which was 7/12th had passed to the plaintiff's father by his purchase in 1933 which was not a benami one, that as the plaintiff was suing for khas possession, he can succeed only on the strength of his title, that no question of estoppel arose. In the result, the appeal was allowed in part, the plaintiff's title, to the extent of 7/12th share of the suit land was declared and the plaintiff was directed to get joint possession with the defendant, the rest of the prayers were disallowed. Plaintiff was awarded 7/12th share of the costs of the suit, defendant 1 was allowed 5/12th cost of the appeal of which was to be set up. (sic)
6. The plaintiff has appealed to this Court.
7. Mr. Bankim Chandra Mukherjee appearing on behalf of the appellant contends that the lower appellate Court has made a new case of title being with Enayetulla. He next contends that as the plaintiff and his father were in possession of the whole of the disputed lands for a long time the plaintiff is entitled to a decree for the whole even though his title extends to 7/12th share, the defendant being a trespasser. He further contends that the suit being one under O. 21, R. 103 of the CPC, he can succeed on proof of his possession at the date of alleged dispossession as the dispossess or was a mere trespasser, the plaintiff having some title.
8. I shall deal seriatim with these contentions.
9. As regards the first contention, Mr. Mukherji refers to a passage in the judgment of the trial Court to the following effect:
“from the pleadings of the parties it is almost an admitted case that the disputed property did belong to Kamaruddin Molla.”
10. I do not think, the Munsif was right in his observation. Defendant 1 traversed the title and possession of the plaintiff and of Kamaruddin. An issue was joined on the following terms “Has the plaintiff any right, title or interest in the disputed properties?” In 50 C.W.N 477 : 81 C.L.J 1071 their Lordships of the Judicial Committee held that a plaintiff suing in ejectment can only succeed on the strength of his own title. There is no obligation on the defendant to plead possible defects in that title. It is sufficient that in the written statement the plaintiff's title is denied. This contention therefore fails.
11. The second contention, in my opinion, is also not sustainable. It is opposed to the settled view of our Court. Mr. Mukherji has relied on the decisions in 14 C.W.N 141,2 58 Cal. 29,3 38 C.W.N 435 : 61 Cal. 4194 and has argued that as his vendor Kamaruddin obtained exclusive possession of the whole and as the plaintiff's father and then the plaintiff were in such possession, though short of the statutory period of 12 years, nevertheless he can successfully maintain an ejectment against defendant 1 who is a mere trespasser.
12. In the present case, the plaintiff prayed for declaration of his exclusive title and for recovery of khas possession on an allegation of dispossession and for demolition of the structures erected by defendant 1 after he took possession. In my opinion, the plaintiff in the suit as framed, can succeed only on the strength of his title and not on the weakness of the defence. I shall now deal with the above cases. In 14 C.W.N 141, the plaintiffs had failed to prove the mokarari title set up by them, but had proved their tenancy right by possession on payment of rent. This was held to be sufficient to maintain a suit for recovery of possession against the defendants who were trespassers. It is apparent that the title proved by the plaintiffs was exclusive and entitled them to possess the whole of the land. The general observation made at page 143 must be read in the light of the facts of the case. In 58 Cal. 29, which was decided by Page, J. sitting singly, His Lordship held that the right of the plaintiff to eject the defendants did not rest merely on bare and unexplained prior possession but that the possession of the plaintiff was by virtue of a title derived from the maliks of the lands which gave them a right for possession. His Lordship expressly held that it was not necessary for him to consider whether a co-sharer can eject trespasser from the entirety of the premises. The wide statement of the law in the early part of the judgment was biter. The case in 61 Cal. 419 does not really assist the appellant. After referring to the decisions of the different High Courts their Lordships (Malik and Jack, JJ.) observed:
“So far as this High Court is concerned, it is well settled 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 of the Specific Relief Act.”
13. Referring to the decisions in 14 C.W.N 141, 58 Cal. 29 which have been relied on by Mr. Mukerji, their Lordships observed that in all these cases previous peaceful possession for a long time gave rise to an inference of title in the plaintiff as against a trespasser and entitled him to a decree for possession against a trespasser who had no right whatsoever to possession. In the present case, the finding of the Court of appeal below is that the possession of Komoruddi was not exclusive but was on behalf of himself and his co-sharers viz., his mother and sister. The view taken in the case last cited has been applied to the case of a co-sharer seeking recovery of possession of the whole of the property, in 49 C.L.J 83,5 a decision of D.N Mitter, J. sitting singly which was affirmed in Letters patent Appeal No. 104 of 1928. The view taken by Mitter, J. was re affirmed in 40 C.W.N 816 which was also a case of co-sharer seeking to recover possession of the whole. At page 83, Naaim Ali, J. observed as follows “In the second place, 16 I.A 1867 is not an authority for the proposition that where a person brings a suit for ejecting a trespasser and is not defending his possession, he can eject the trespasser from the whole of the land. If a person has entered into possession lawfully and peaceably and if his possession is attempted to be disturbed by a person who has no title, he can maintain his possession by an injunction from the Court. If, however, he is dispossessed and does not sue for possession under Section 9 of the Specific Relief Act, he can only succeed on the strength of his own title.”
14. Henderson, J. who concurred in the decision went on to state that:
“In the second place, the previous possession of the plaintiffs was merely that of co-sharer and it is quite ingless to say that they were in possession of a share mean greater than that to which they were entitled.”
15. The second contention therefore fails. As regards the third contention, I have pointed out that the suit is not strictly in terms of O. 21, R. 103 of the CPC. But assuming that it is so, I think the plain words of the rule negative this contention. A suit under the Rule is expressed to be a suit “to establish the right which he (plaintiff) claims to the present possession of the property.” It is a suit based on the right to possession and not on mere possession at the relevant date. It is true that in the summary proceedings under O. 21, Rr. 98, 99, 101 of the CPC, the inquiry is directed to question of possession but the scope of the suit under Rule 103 is much wider. This view is fully supported by the decisions in 44 Mad. 2278 and 17 Pat. 161.9 It has been held in A.I.R 1932 ALL. 70310 that a suit under O. 21, R. 103 of the CPC, is not akin to a suit under Section 9 of the Specific Relief Act and the plaintiffs in a suit under O. 21, R. 103 of the CPC, cannot succeed by merely showing that they were in possession and had been dispossessed, they must establish their right to possession on the assumption that they were not in possession on the date of the order under Rules 98, 99, 101. This contention also fails.
16. In the above view, it is not necessary to deal with the contention raised by Mr. Jagadish Chandra Ghose appearing for the respondent that the Province of Bengal who was in substance the decree-holder at whose instance the sale at which defendant 1 purchased was held, was a necessary party to the suit under O. 21, R. 103 of the CPC. The appeal accordingly fails and must be dismissed with coats.
D.H
17. Appeal dismissed.
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