Lachho v. Har Sahai

Mahmood, J.:— The facts necessary to elucidate the question of law argued before me in second appeal are as follows:— The plaintiff Har Sahai is the son of Shankar, who is the son of Balkrishen, and belongs to the Brahman caste. The defendant No. 1, Musammat Lachho, is the daughter of Debi Das, and she on the 28th April, 1886, representing herself to have inherited the shop and the site in dispute from her father Debi Das, executed a deed of sale in favour of Nathu Mal, the defendant No. 2. These facts are admitted.

The plaintiff came into Court upon the allegation that his grandfather Balkrishen, had acquired the shop originally, that upon his death the property devolved upon Shankar, and upon the latter's death he, the plaintiff, inherited it. The period of their continuous, undisturbed and peaceful possession is stated to be half a century. It is further alleged that in consequence of a heavy fall of rain the shop fell down, and the plaintiff in exercise of his proprietary right began to rebuild, but was obstructed by the defendants on the 2nd May, 1886, when they entered into wrongful possession and began to build in spite of obstruction to such trespass by the plaintiff. The relief sought was recovery of possession and some minor reliefs as to removal of certain materials, and recovery of price of some materials which the defendants had wrongfully appropriated.

The suit was resisted on the allegation that the plaintiff and his ancestors had no title, that their possession was as mere tenants-at-will, that the rent they paid consisted of a quarter seer of milk [48] every morning, that this was subsequently commuted to payment of rent at 8 annas per mensem, and that the shop having been demolished, the plaintiff could not maintain the action.

The first Court held that considering the long and continuous possession of Har Sahai extending over forty years, and other circumstances, he had proved his title, that the defendants had not succeeded in proving any title, and that their action was pure trespass, and furnished the cause of action for the plaintiff's suit. Upon these grounds that Court decreed the claim for land, and declared the sale deed of the 28th April, 1886, void against the plaintiff, but dismissed the portion of the claim for the value of the materials.

On appeal, the learned Judge in a judgment which in some material matters differs from the conclusion of the first Court, has upheld the decree.

This circumstance has given rise to this second appeal, because while on the one hand Mr. Sundar Lal on behalf of the appellants pleads that upon the finding of the lower appellate Court this suit should have been dismissed, Mr. Spankie on behalf of the respondent in supporting his objections under s. 561, contends that the lower appellate Court was not justified in holding that the plaintiff's possession was not that of a full owner. What the lower appellate Court has found is, that the defendants had totally failed to prove their allegation as to payment of rent, in the shape of a quarter seer of milk or 8 annas per month, and that apparently Debi Das had allowed the plaintiff, his parohit, to occupy, without payment of rent, but as a matter of favour, and on these grounds that Court has dismissed the appeal with costs, without specifying in the decree the exact modifications which its conclusions necessitated, as contemplated by cl. (d) of s. 574 of the Civil Procedure Code. It is, however, obvious that whilst the first Court decreed the claim, the Judge has in effect modified that decree by holding that the plaintiff's possession was that of a licensee from Debi Das, and that such license was limited to the plaintiff's life-time. It appears to me that the judgment of the lower appellate Court is unsatisfactory, because [49] practically it is not a judgment upon the merits, and it is silent upon some of the most vital questions involved in the case. In the first place, it was necessary to consider whether in an action of this character the burden of proof regarding title to the property in suit lay upon the plaintiff or the defendants. The learned Judge has found, concurring with the first Court, that the plaintiff and his predecessors in title had been in continuous possession for forty years without payment of rent, and upon this finding Mr. Spankie relies in support of his objections under s. 561 of the Civil Procedure Code, and argues that the interference by the lower appellate Court with the judgment of the Court of first instance was erroneous, because long possession without payment of rent must be presumed to be proprietary and adverse. Mr. Sundar Lal contends that the Judge having found that it was as a favour that Debi Das allowed the plaintiff to live in the house, and his possession therefore was that of a licensee, the defendants' appeal should be decreed. In either view I am unable to dispose of the case finally.

The first point is whether the plaintiff was the owner of the property in suit or the defendant Lachho or her father Debi Das under whom she claims, and which title she conveyed to the other defendant, Nathu Mal. The question of onus in such cases is regulated by the principle formulated in s. 110 of the Evidence Act, I of 1872, a principle which only gives effect to a well known principle of law common to all systems of jurisprudence, that possession is prima facie evidence of title. It is conceded by Mr. Sundar Lal that if in this case the plaintiff had been at the date of suit in possession of the shop in dispute, and had been sued by the present defendants, these latter appearing as plaintiffs to the action, the onus would have been on the present defendants, namely, Lachho and Nathu Mal; but the learned pleader contends that because the position of parties is reversed, and the plaintiff seeks to oust the defendants, the onus is on him, and the possession of forty years anterior to his alleged dispossession on the 2nd May, 1886, shifts the burden of proof upon the plaintiff, and renders it necessary for him to prove his title. In support of this contention he relies on the following [50] cases:—Dadabhai Narsidas v. The Sub-Collector of Broach(1), Debi Churn Boido v. Issur Chunder Manjee(2), Ertaza Hossein v. Bany Mistry(3), which cases I need not reconsider in detail. Their general effect is that in a suit for possession the mere circumstance that the plaintiff succeeds in proving that he had been in possession at some time within twelve years previous to the suit is not sufficient to throw the onus on the defendant, and in such action the plaintiff must succeed by force of his title, unless the suit is possessory, as contemplated by s. 9 of the Specific Relief Act (I of 1877). Mr. Spankie, relies upon the well known case of Asher v. Whitlock for the proposition, to use the words of Cockburn, C.J, “that it is clearly established that possession is good against all the world except the person who can show good title;” and upon the following Indian cases: Kawa Manji v. Khowaz Nussio; Mohabeer Pershad Singh v. Mohabeer Singh. The effect of these Indian cases broadly stated is that when there is wrongful ouster of the person in possession, the person who comes into Court to oust such tortfeasor need not prove more than his possession of the lands in dispute, and that he had been ousted by the defendant, and that the plaintiff's prior possession was prima facie evidence of his title. It seems to me that the question as to the burden of proof belongs to that department of procedure which relates only to ascertainment of facts, and being such a doctrine it is not affected by array of parties or accidents which necessitate that A should sue B or B should sue A, but by facts which in themselves furnish evidence of title or of other facts. Among other facts is the fact of possession as used in s. 110 of the Evidence Act. It seems to me that usually it is for the plaintiff who seeks ejectment to prove his title. But I also hold that when possession for thirty or forty years is proved to have been peaceably enjoyed, the person who has recently dispossessed such plaintiff has to meet the presumption of law, that the plaintiff's long possession indicates his ownership of the property. In this view of the matter it was [51] for the defendant Lachho to have proved that Debi ever owned the property in suit, that it descended to her by inheritance, that it was ever let to the plaintiff, or that the latter ever recognised her rights. The Courts below have found that she has failed to prove the receipt of any rent from the plaintiff, and this would go far to show that the plaintiff's possession of thirty or forty years' standing was adverse. But the learned Judge (upon what evidence it is not clear) has arrived at the conclusion that the plaintiff was only a licensee of Debi Das. There was no such allegation, either by Mussammat Lachho or her vendee Nathu Mal, or by the plaintiff, and this being so, Mr. Spankie on behalf of the respondent rightly complains that the Judge has set up a case for the defendants which they themselves never set up.

Under these circumstances I cannot regard the case as properly disposed of, and I therefore decree the appeal of the lower appellate Court and remand the case to that Court for disposal on the merits under s. 562 of the Civil Procedure Code, with reference to the observations made above. Costs to abide the result.

Cause remanded.