MOHAMED ISAK SAHEB Vs. NAJARUDDIN SHAMANSAHEB MULLA

JUDGEMENT

(1.) The respondents filed on the 13th of October 1950, Special Civil Suit No. 142 of 1950, in the Court of the Joint Civil Judge, Senior Division Belgaum, against the original appellants 1 and 2 and others, for recovery of possession with mesne profits of the lands comprised in Section Nos. 43/2 and 44/2 of Shindoli village, Belgaum Taluk. This basis of the claim made in the plaint was that the lands had been granted to the ancestors of the respondents as Mullagiri service inam lands in ancient times by one of the Badshahs of Bijapur for performance of Mullagiri services to the village community of Shindoli, that the lands were inalienable by the terms of the grant and that, therefore, the alienation thereof by the respondents grandfather Rajesaheb by way of sale on the 4th of February, 1914, in favour of Nadirsaheb Fakruddin Killedar, father of the original second appellant and father-in-law of the first appellant, was unauthorised, void and conveyed no title whatever. Among other defence raising questions toughing the character of the lands and nature and incidents of the tenure under which the same had been held by the respondents ancestors, the substantial defence to the suit was that the title of Rajesaheb himself had been extinguished during the lifetime by the adverse possession of the aforesaid purchaser and his successor-in- interest, the appellants. The Court below held that the lands were Mullagiri inam lands, that they were inalienable under the terms of the grant but that the possession of the purchaser and his successors-in- interest became adverse to the heirs of Rajesaheb only from the death of the said Rajesaheb which took place in 1940 and that, therefore, the respondents having filed the suit within 12 years of the death of Rajesaheb were entitled to recover possession of the lands. Accordingly, it passed a decree directing that the respondents do recover possession of the suit lands together with past mesne profits of Rs. 750/-. Hence, this appeal by the defeated defendants.

(2.) When the suit was first tried, the respondents had not produced the original Sanad relating to the suit lands. But, the Court, on the strength of two documents produced by the respondents, viz., Explanation 58 a report or decision of the inam Commission under the Bombay Rent free Estates Act No. XI of 1852, and Explanation 104 an extract from the Register of alienated villages and lands in Belgaum Taluk maintained under section 53 of the Bombay Land Revenue Code as it stood in the year 1890-91, opined that Sanad must have been issued in the form prescribed under the said Act for the issue of Sanads to Joshis, etc., and held that the lands being watans held for performances of services could not be transferred. After the filing of the this appeal, the respondents produced the original Sanad into Court with an application to receive the same by way of additional evidence. This Court allowed that application holding that the Sanad produced should be received in evidence but because the learned counsel for the appellants wanted an opportunity being given to his clients to adduce evidence to show that the recitals in the Sanad in regard to the property being inalienable were never observed in practice and the alienations of inam lands of this type were being widely recognised by custom remanded the suit to the trial Court with a direction to record evidence and findings on the following two additional issues framed by this Court:

(3.) In the arguments before us after the submission of these findings by the trial Court, the controversy has been, not so much on the nature and incidents of the grant in respect of the suit lands as on the question of adverse possession. Though the learned counsel for the appellants was not willing to concede the correctness of the findings returned by the Court below, it is clear that this entire argument on the question of adverse possession proceeds on the basis that the lands were originally inalienable. It is, however, necessary before examining the question of adverse possession to ascertain the nature and true incidents of the grant under which the reports ancestors came to acquire the suit lands.