Kumar Kalanand Singh v. Syed Sarafat Hossein

The Judgment of the Court was as follows:—

The suit, out of which this appeal arises, was brought: by the Plaintiff-Respondent to recover possession of 9 gundas odd share of Mouzah Fatehpur, as a purohaser at a sale for arrear of revenue. Mouzah Fatehpur, with two other mouzahs, constituted an entire estate, in which Defendants Nos. 1, 2 and 3 owned a 7 annas 15 gundas odd sdare, Defendant No. 4 a similar share and Mussts. Laduan and Eaduan the remaining 9 gundas odd share. Separate aocounts had been opened in the Collectorate under sec. 10 of Act XI of 1859 in respect of each of those shares. The 9 gundas odd share of Mussts. Laduan and Kaduan having fallen into arrear was sold by the Collector under sec.) 3 of Act XI of 1859 in November 1900, and was purchased by the Plaintiff, Plaintiff then applied to the Collector for partition of the share purchased by him. Defendants Nos. 1, 2 and 3 objected to the partition on the ground that Plaintiff was not in possession of his share in Mouzah Fatehpur, Plaintiff thereupon withdrew his application for partition, and then brought the present suit to recover possession of his share in that Mouzah.

The main defence of the Defendant was that Mussts. Laduan and Kaduan had no right to the share, and that even if they had any right they had lost it by reason of adverse possession by the Defendants for more than 12 years; and that Defendants Nos. 1, 2, 3 and 5 had by such adverse possession acquired a right to one half, and Defendant No. 4 had similarly acquired a right to the other half of the 9 gundas odd share, and that they were in possession of their respective moleties.

Both the Courts below have held that as soon as the Defendants acquired a title on the share by adverse possession, their liability to pay Government revenue in respect thereof accrued, and as they defaulted in paying the revenue which fell due after they had acquired such title their share passed to the purchaser at the sale. On this ground the Courts below have decreed the Plaintiff's suit.

The Defendants Nos. 2 and 3 have appealed, and it is now contended on their behalf on the authority of the case of Kami Khan v. Brojo Nath Das(1), and the cases cited therein, that the right acquired by adverse possession against the former proprietor is an encumbrance and that under sec. 54 of Act XI of 1859, which defines the rights of a purchaser of a share at a revenue sale, the Plaintiff purchased the share subject to such encumbrance, and that therefore Plaintiff is not entitled to recover possession of the share.

It has also been urged that it would be Incongruous to hold that adverse possession for 12 years, if it is not completed before the date of default in the payment of revenue, continues to be an encumbrance and the purchaser takes the share subject thereto, but that if such possession is completed before the date of default, it ceases to be an encumbrance and the purchaser takes the share freed from it.

We do not think that these contentions are sound. It is perfectly clear that although at the expiration of the statutory period the trespasser acquires a right to the share as against the former owner, he does not acquire such right freed from the liability to pay revenue. Were it otherwise, the result would Indeed be that all revenue-paying estates or shares of estates in the possession of trespassers would, after the lapse of 12 years, become revenue-free. If after the trespasser has acquired a right to the share by adverse possession any instalment of revenue payable in respect thereof falls due, and he does not pay the same, such default must be treated as his default, and if, in consequence thereof sale takes place, it must be held to pass his interest.

It is difficult to distinguish in principle the present case from those where the former owner transfers his share, before the date of default, under a private conveyance, or where the share is transferred by a judicial sale, and the share is subsequently sold by the Collector on account of default in the payment of revenue. It has been held that in the last mentioned cases, the right of the transferee or the purchaser at the sale, as the case may be, passes to the purchaser under the sale held by the Collector. See Annoda Pershad Ghose v. Rajendra Kumar Ghose(2), Bhowani Koer v. Mathura Prosad(3), Gungadeen Misser v. Kheeroo Mundle(4).

If adverse possession for the statutory period is not completed before the date of default, the purchaser by virtue of his certificate of sale steps into the shoes of the former owner, and becomes entitled to recover possession of the share in the same manner in which the former owner would have done, had no sale taken place, because by the very hypothesis, his right to the share would be still subsisting.

It follows therefore that whether the adverse possession is completed before or whether it is completed after the data of default, the purchaser at the revenue sale in either case becomes entitled to the possession of the share. Hence the anomaly, which has been suggested, does not exist.

For the foregoing reasons we agree with the Courts below and dismiss this appeal. As no one appears for the Respondent we dismiss it without costs.

N.G

Appeal dismissed.