DARBAR NARANSINHJI CHANDRASINHJI Vs. MADHAVSING KESARISING DESAI

JUDGEMENT

(1.) THIS is an appeal by the present Chief of Patdi who has succeeded to the estate of the former Chief who was the defendant in this suit. The suit was brought by the plaintiff for a permanent injunction against the defendant to restrain him from obstructing the plaintiff's possession and enjoyment of the plaint land which consists of a plot of land situated at Patdi in what is known as Patdi Estate.

(2.) THE plaintiff's case in substance was that his grandfather acquired the suit plot along with another bigger plot situated in its neighbourhood from the then Chief of Patdi on January 17, 1879. THE consideration of the transaction was Rs. 1,600, out of which Rs. 1,200 were paid in cash and for the rest of the amount, i.e. Rs. 400, the purchaser transferred to the then Chief two rooms belonging to him at Patdi. It was thus a transaction of part sale and part exchange. At the time when this transaction took place one Himatsinhji was the Chief of the Patdi Estate. He died in 1884 and was succeeded by Surajmalji who died in 1913. THEreafter Dolatsinhji succeeded to the estate till his death in 1928, and after his death the original defendant in the present case Raghuvirsinhji became the Chief. After his death during the pendency of this appeal the present Chief Naransinhji has been brought on the record. I am giving this list of the successive Chiefs of Patdi, because it would be a material point in this appeal as to whether the original transaction of what I might call sale would be binding on the successors of the Chief in whose lifetime it took place. This Patdi estate is situated in British India although some of the villages, belonging to the Chief, are situated in Kathiawar and for those villages Patdi is under the political jurisdiction of the Agent to the Governor General in Kathiawar. But for these particular villages which are situated in British India the Chief of Patdi is holding under a tenure which has, been now defined under the Government Resolution of 1908. It is there described as a sort of Saranjam estate governed by its own rules. THE material rules are that the estate is continuable in perpetuity to the holder of the jurisdictional estate of Patdi in Kathiawar for the time being, subject to the conditions specified in the Government Resolution of 1908, that the estate shall be held as a life estate by each holder for the time being, and shall pass to the next holder unencumbered by any debts or charges save such as may be specifically imposed by Government itself. THE next rule which is material for the purpose of the present appeal is that the estate shall be inalienable and impartible, and as regards succession and inheritance including adoption will follow the jurisdictional estate in Kathiawar, and that any alienation whatever shall be invalid. It may be taken for the purpose of this appeal that these rules, which were enacted for the first time in 1908, are retrospective in their effect and that they would apply to any transaction which took place before they came into force.

(3.) IT is urged as against this finding that it is based not upon evidence but upon a sort of presumption which is not supported by any evidence. The argument is that there is no direct evidence to show that the plaintiff's predecessor-in-title had been given possession of the suit plot in 1879, and that therefore, even though the plaintiff's evidence may be believed, that possession may be said to date from 1885 onwards but not in any case from 1879. I do not think, however, that the finding of the lower appellate Court that the possession of the suit plot by the plaintiff and his predecessors had been proved from 1879 can be said to be vitiated by any illegality in the sense that there is no evidence to support it. The plaintiff has led the available oral and documentary evidence about possession of the suit plot by his family. If there is no living person coming forward to depose that the possession of the suit plot was given in 1879, the lower appellate Court was entitled to infer from the other evidence adduced by the plaintiff that the possession of the suit plot must have been given to the plaintiff's family at the time when the transaction took place. The earliest document relied upon by the plaintiff is of 1885, i.e. six years after the transaction took place, and if it can be said that the suit plot was in possession of the plaintiff's family in 1885, it would certainly be reasonable to infer that that was because possession had been given to the plaintiff's family in 1879 when the sale transaction took place. That inference is further strengthened by the fact that the bigger plot, which was also sold to the plaintiff's family in the same transaction of 1879, has been not only proved but admitted to be in the possession of the plaintiff's family ever since 1879. I think, therefore, the lower Court was right in making a reasonable inference that the suit plot must have been given possession of to the plaintiff's predecessor at the time when the transaction took place. IT must, therefore, be held that this transaction of sale was perfected by possession.