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Case Number
Attorney(S)
  • Babu Hemendra Chandra Sen (with him Babu Surendra Chandra Sen) for the Appellants.
  • Babus Sarat Chandra Roy Choudhuri and Mukund Behari Mullick for the Respondents.
Judges
  • Mookerjee, C.J
  • Fletcher, J.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Babu Hemendra Chandra Sen (with him Babu Surendra Chandra Sen) for the Appellants.
  • Babus Sarat Chandra Roy Choudhuri and Mukund Behari Mullick for the Respondents.
Judges
  • Mookerjee, C.J
  • Fletcher, J.
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This is an appeal by the Plaintiff in a suit for recovery of possession of land on declaration of title. The land originally belonged to Bhagirath Majhi, who left four sons: Gangadhar, Baikuntha, Lakhan and Jharu. Baikuntha and Jharu left the ancestral home and went to reside in another village. The Plaintiffs claim title by purchase from the representatives of Baikuntha and Jharu. The Defendants claim title by purchase from representatives of the other two brothers (Gangadhar and Lakhan).

The primary factual dispute was whether the title of Baikuntha and Jharu was extinguished by adverse possession on the part of their co-owners (the other brothers and their successors). The trial Court of first instance found that adverse possession had not been established and decreed the suit in favour of the Plaintiffs. The Subordinate Judge reversed that view, finding adverse possession (noting inter alia that Baikuntha and Jharu removed from the village 50 years earlier, that their predecessors-in-interest were not in possession for 50 years, that co-owners occupied and enjoyed the property, paid rent to the superior landlord, and had dealt with the property as their own since at least 1878), and dismissed the suit.

The Plaintiffs (Appellants) appealed, contending that even assuming the Subordinate Judge's factual findings to be correct, those facts did not establish that the predecessors of the Plaintiffs had their title extinguished by adverse possession.

Legal Issues Presented

  1. Whether, on the facts found by the Subordinate Judge, the title of Baikuntha and Jharu (and their successors) was extinguished by adverse possession on the part of their co-owners.
  2. Whether the question of adverse possession in this case is a matter that the Court of final appeal (a second appeal) may properly determine — i.e., whether the inquiry involves a mixed question of fact and law such that this Court can review the legal correctness of the inference drawn from the facts found below.

Arguments of the Parties

Appellant's Arguments

  • The Appellants (Plaintiffs) contended that even if the Subordinate Judge's facts are assumed to be correct — that Baikuntha and Jharu had left the village for fifty years, that co-owners occupied the property and paid rent, and that transfers occurred beginning in 1878 — these facts do not demonstrate that the title of the predecessors of the Plaintiffs was extinguished by adverse possession.

Respondent's Arguments

  • As a last resort, the Respondents argued that the matter of adverse possession was not competent for decision by this Court in a second appeal (i.e., that the appellate jurisdiction should not entertain this issue at this stage).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Corea v. Appuhamy Possession of one coparcener cannot prima facie be held adverse to other coparceners; cited Lord Macnaghten's approval of the dictum in Thomas v. Thomas. The Court relied on Corea to state the principle that one co-owner's possession is not to be presumed adverse, and applied that principle to the facts, weighing against a finding of extinguishment by adverse possession.
Muttu Nayagam v. Brito Referenced as adopting the same view (co-owner's possession not prima facie adverse); Lord Dunedin took the same view. Used to support the proposition, cited as among Judicial Committee decisions endorsing the general principle regarding co-owners' possession.
Hardit Singh v. Gurmukh Referenced for the same general proposition (co-owner's possession not prima facie adverse); Lord Buck-master cited similarly. Relied upon as part of the series of Judicial Committee authorities establishing the principle applied by the Court.
Thomas v. Thomas (dictum of Vice-Chancellor Page Wood) Dictum: possession is never considered adverse if it can be referred to a lawful title. Quoted (via Corea) to support the rule that co-owner possession is presumed lawful and not hostile unless proved otherwise.
Culley v. Doe Dem Taylerson Observations by Lord Denman: generally one tenant in common cannot maintain ejectment against another; but where claimant has not participated in rents/profits for long and other circumstances exist, jury may consider presuming ouster. Quoted to explain exceptions where ouster may be presumed and to justify requiring notorious facts or intent to establish adverse possession among co-owners.
Doe Dem Fisher v. Prosser Listed as a case where presumption of ouster may be considered; specific rule not detailed in the opinion text. Referenced as authority for the statement that judges may direct a jury to consider whether to presume ouster in appropriate circumstances.
Doe Dem Hellings v. Bird Listed among cases on presuming ouster; specific rule not stated in the opinion text. Referenced in support of the Culley formulation about when ouster may be presumed.
Doe Dem White v. Cuff Listed among cases on presuming ouster; specific rule not stated in the opinion text. Referenced together with other Doe Dem cases as authorities for the principle permitting a presumption of ouster in certain circumstances.
Jogendra Nath Rai v. Baladeo Das The opinion states the principle (in the words of the judgment in this case) that the entry and possession of land under the common title of one co-owner will not be presumed adverse to others; acts of ownership by a co-owner are not per se disseisin; notoriety and intent must be established. The Court adopted and quoted this formulation as a clear statement of the fundamental rule applied to the facts before it.
Ayenenussa Bibi v. Sheikh Isuf Referenced among decisions of this Court; the opinion did not state the specific principle from this case. Listed as part of authorities in the Court's survey of domestic precedents supporting the general rule regarding co-owners' possession.
Loke Nath Singh v. Dhakeswar Prosad Narain Singh Referenced among decisions of this Court; specific principle not stated in the opinion text. Included in the collection of cases cited to support the established principle on co-owners' possession.
Narendra Bhusan Roy v. Jogendra Nath Roy Referenced among decisions of this Court; specific principle not stated in the opinion text. Listed as domestic authority corroborating the general rule applied by the Court.
Lachmeswar v. Manowar Held that the question of adverse possession is a mixed question of fact and law (authority for appellate competence to review legal inference from facts found). The Court relied on this decision to justify reviewing whether the facts found by the Subordinate Judge could legally sustain a conclusion of adverse possession in a second appeal.
Ramgopal v. Shamskhaton Referenced (with several other cases) as authority for the proposition regarding reviewability of legal inferences from found facts; the opinion did not state the specific rule from this case. Cited to support the Court's position that while facts found below are binding, the legal inference (whether possession is adverse) is open to review.
Satgur Prasad v. Raj Kishor Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Cited as additional authority for the mixed question proposition.
Ishan v. Bishu Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Included as corroborative authority for the Court's jurisdiction to consider legal inferences from facts.
Rajaram v. Ganesh Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Relied on as part of the body of authorities allowing review of legal conclusions on mixed questions.
Makund v. Gopi Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Listed among authorities for the Court's assertion of competence to review legal inferences from the facts found below.
Maruti v. Banubai Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Included as further authority for the mixed question approach to adverse possession issues.
Venkatesh v. Bhavani Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Cited to buttress the Court's power to decide whether facts found could legally sustain adverse possession.
Rajaram v. Nancharul Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Used as additional authority for treating adverse possession as a mixed question where legal inference is reviewable.
Pandurang v. Amrit (22) Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Listed with other cases to show consistent authority for the Court's approach to reviewing legal inferences from facts.
Ganapati v. Raghunath Referenced among cases supporting the appellate review principle; specific rule not stated in the opinion text. Cited as part of the body of decisions relied on to justify review in a second appeal of the legal conclusion from the facts.

Court's Reasoning and Analysis

The Court began by noting established principles from recent decisions of the Judicial Committee and this Court regarding co-owners' possession:

  • Possession by one co-owner is ordinarily not treated as adverse to other co-owners; possession under a common title is presumed to be for the benefit of all.
  • Acts of ownership by a co-owner that, if done by a stranger, would amount to disseisin, are in the tenancy-in-common context susceptible of explanation; the law will not construe possession as tortious unless necessity or clear proof of hostility exists.
  • To establish adverse possession between co-owners, facts must be notorious and the intent to oust must be established; mere acts of possession or payment of rent do not automatically prove an ouster.

Applying these principles to the facts found by the Subordinate Judge, the Court examined the specific factual elements relied upon by the Subordinate Judge and Respondents:

  1. That Baikuntha and Jharu removed from the village fifty years earlier and that co-owners subsequently occupied the property: the Court held there was nothing to indicate that the possession of the entire property by the co-owners was unlawful in its inception; the presumption is that co-owners possessed the entire property in their capacity as co-owners when the absent co-tenants were elsewhere.
  2. That the co-owners alone paid rent to the superior landlord during that period: the Court reasoned that payment of rent by the persons who took the whole profits is to be expected and does not of itself prove a hostile claim; the rent had to be paid to avoid sale of the tenancy, and those in possession paying the whole rent is explainable without implying an adverse claim.
  3. That the absent co-tenants did not assert a claim upon succession events: the Court observed this conduct has an obvious explanation, namely that the persons in possession as co-owners would be entitled to continue in possession as co-owners notwithstanding deaths in the family.
  4. That one co-owner had allegedly dealt with the land as his own since 1878 via a conveyance on 18 March 1878 transferring the lands (or possibly only a portion) to an infant nephew: the Court scrutinized this transfer, noting the parties disputed whether the conveyance covered the whole or part of the lands and that the trial Court considered the transaction possibly fictitious. The Court concluded that the mere execution of that conveyance was not of such notoriety as to inform the absent co-tenants that their co-sharers intended to set up a hostile title.

On the procedural point, the Court considered whether the issue was reviewable in a second appeal. Relying on Lachmeswar v. Manowar and a list of supporting authorities, the Court treated adverse possession as a mixed question of fact and law: the facts found by the lower Appellate Court are binding, but whether those facts fairly support the inference of adverse possession is a legal question open to review. Thus, while the Court accepted the facts found by the Subordinate Judge for present purposes, it was entitled to decide whether the legal inference of adverse possession could be drawn from those facts.

Weighing the principles and facts together, the Court concluded it was impossible to hold, on the facts found, that the title of the predecessors of the Plaintiffs had been extinguished by adverse possession on the part of their co-owners.

Holding and Implications

Holding: The appeal was allowed. The decree of the Subordinate Judge (which had dismissed the suit on the basis of adverse possession) was set aside, and the decree of the Court of first instance (which had decreed possession to the Plaintiffs) was restored with costs in all the Courts.

Implications:

  • Direct effect: The Plaintiffs' decree for recovery of possession on declaration of title is reinstated; the Defendants' claim based on adverse possession as found by the Subordinate Judge is rejected.
  • Procedural/legal implication stated by the Court: Adverse possession as between co-owners involves a mixed question of fact and law — while factual findings of the lower appellate court are accepted, the appellate court may review whether a legal inference of adverse possession properly follows from those facts.
  • The opinion does not set out any broader novel precedent beyond applying and reaffirming established principles regarding co-owners' possession and the reviewability of legal inferences in a second appeal.

End of summary — all information above is drawn exclusively from the provided opinion text.

Show full summary ...

    Balaram Guria v. Shyama Charan Mandal

    The Judgment of the Court was as follows:—

    Mookerjee, C.J:— This is an appeal by the Plaintiff in a suit for recovery of possession of land on declaration of title. The land belonged to one Bhagirath Majhi who left four sons, Gangadhar, Baikuntha, Lakhan and Jharu. Baikuntha and Jharu left the ancestral home and went to reside in a different village. The Plaintiffs claim title by purchase from the representatives of Baikuntha and Jharu. The Defendants claim title by purchase from the representatives of the other two brothers. The substantial question in controversy between the parties is, whether the title of Baikuntha and Jharu was extinguished by adverse possession on behalf of their brothers. The Court of first instance found that adverse possession had not been established, and decreed the suit. The Subordinate Judge has taken a different view, and has dismissed the suit. The Subordinate Judge has found that Baikuntha and Jharu removed to another village, that the predecessors-in-interest of the Plaintiffs were not in possession for 50 years, that during this period the property was possessed by the co-owners, that the predecessors-in-interest of the Defendants have alone paid rent to the superior landlord, and have dealt with the property as their own since at least 1878. The Appellants have contended that assuming that these facts have been correctly found, they do not show that the title of the predecessor of the Plaintiffs was extinguished by adverse possession on the part of their co-owners.

    It is plain from the judgment of the Subordinate Judge that he has not kept in view the principles applicable to cases of this character, which must now be deemed to be well-settled and beyond controversy. The question has been considered by the Judicial Committee in three recent cases, namely, Corea v. Appuhamy , Muttu Nayagam v. Brito and Hardit Singh v. Gurmukh . In the first of these cases, Corea v. Appuhamy , Lord Macnaghten cited with approval the dictum of Vice-Chancellor Page Wood in Thomas v. Thomas , namely, that possession is never considered adverse if it can be referred to a lawful title; and held that possession of one coparcener could not be held primâ facie as adverse to other coparceners. Lord Macnaghten, however, added that in former times before the Statute of William IV when the justice of the case seemed to require it, juries were sometimes directed that they might presume an ouster. This is borne out by the judgment of Lord Denman, C.J, in Culley v. Doe Dem Taylerson , where we find the following observations:— “Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster; as to which see the cases of Doe Dem Fisher v. Prosser , Doe Dem Hellings v. Bird and Doe Dem White v. Cuff . The same view was taken by Lord Dunedin in Muttu Nayagam v. Brito and by Lord Buck-master in Hardit Singh v. Gurmukh Singh . Among the cases in this Court, reference may be made to the decisions in Jogendra Nath Rai v. Baladeo Das , Ayenenussa Bibi v. Sheikh Isuf , Loke Nath Singh v. Dhakeswar Prosad Narain Singh and Narendra Bhusan Roy v. Jogendra Nath Roy . In the words of the judgment in the first of these cases, the principle may be stated in the following terms. The fundamental rule is that the entry and possession of land under the common title of one co-owner will not be presumed to be adverse to the others, but will ordinarily be held to be for the benefit of all. The obvious reason for this rule is that the possession of one co-owner is, in itself, rightful and does not imply hostility, as would the possession of a mere stranger. The law will never construe a possession tortious, unless from necessity; on the other hand it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful; and this, upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. In other words, the only difference between the possession of a co-owner and other cases is, that acts, which, if done by a stranger, would per se be a disseisin, are in the case of tenancies in common, susceptible of explanation consistently with the real title; acts of ownership are not, in tenancies in common, acts of disseisin; it depends upon, the intent with which they are done and their notoriety; the law will not presume that one tenant in common intends to oust another; the facts must be notorious and the intent must be established in proof.

    Now, if we apply these principles to the case before us, what is the position? Stress is laid on the fact that the predecessors of the Plaintiffs left the village fifty years ago, and that the property was thereafter in the occupation of their brothers. There is, however, nothing to indicate that their possession of the entire property was in its inception unlawful. On the other hand, the presumption is that the co-owners possessed the entire property, in their character as co-owners, as they were entitled to do, when the co-tenants were in another place. It is next urged that these co-owners, who were in enjoyment of the entire profits, alone paid rent to the superior landlord. The obvious answer is that the rent to the superior landlord would have to be paid in any event, as otherwise the tenancy would be sold; and, it may be presumed that, when the entire rent was paid by the persons who took the whole profits, they only did what might be expected from them in the circumstances. It is then said that the absent co-tenants did not put forward any special claim when succession took place by reason of death in the family. But this is a conduct which admits of an obvious explanation; the persons who were in possession as co-owners would be entitled to continue in possession as co-owners, notwithstanding the death of one or other of the co-tenants. Finally, it is contended that one of the co-owners has dealt with the land as his own since 1878. This statement is of a somewhat sweeping character. On examination, it appears that on the 18th March 1878 this co-owner transferred the entire lands or only a portion thereof (this is a point upon which the two parties are not here agreed) to his infant nephew. Whether this was a real transaction, or not, may be a matter of doubt; the Court of first instance was inclined to the view that this was a fictitious transaction. The infant, on attainment of age on the 23rd December 1902, transferred the property to one Kunja Biswas (the second Defendant), who on the 23rd March 1908 transferred it to the first Defendant, Shyama Charan Mandal. The trial Court expressed the opinion that these frequent transfers were calculated to create considerable suspicion about the reality of possession of the successive transferees. The question, thus, arises, whether the conveyance of the 18th March 1878 can be treated as an act of ouster of the predecessor of the Plaintiffs. We are not prepared to hold that the mere execution of the conveyance was an act of such notoriety as to impress on the predecessors of the Plaintiffs that their co-sharers who lived in the village and occupied the joint property intended to set up a hostile title against them. In our opinion, it is impossible to hold, on the facts found, that the title of the predecessors of the Plaintiffs was extinguished by adverse possession on the part of their co-owners.

    It has been contended on behalf of the Respondents, as a last resort, that this is a matter with which we are not competent to deal in second appeal. It is plain, however, from the decision of the Judicial Committee in the case of Lachmeswar v. Manowar that the question of adverse possession which we have to determine is a mixed question of fact and law. In respect of the facts found by the lower Appellate Court, which is the final Court competent to deal with facts, we are bound to accept them as conclusive. But when we are called upon to consider whether from the facts found an inference can fairly be drawn that the possession was adverse, it is a question of law which we are entitled to investigate. The facts found need not be questioned; it is the soundness of the conclusion from them that is in question, and this a matter of law [See also Ramgopal v. Shamskhaton , Satgur Prasad v. Raj Kishor , Ishan v. Bishu , Rajaram v. Ganesh , Makund v. Gopi , Maruti v. Banubai , Venkatesh v. Bhavani , Rajaram v. Nancharul , Pandurang v. Amrit (22) and Ganapati v. Raghunath ].

    The result is that this appeal is allowed, the, decree of the Subordinate Judge set aside and that of the Court of first instance restored with costs, in all the Courts.

    Fletcher, J.:— I agree.

    H.C.S
    Appeal allowed with costs.

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    Balaram Guria v. Shyama Charan Mandal
    (Jul 29, 1920)