DAGADABAI FAKIRMAHOMED Vs. SAKHARAM GAVAJI

JUDGEMENT

(1.) THE plaintiff claiming to be the heir of her husband, who died in 1923 sued to eject the defendants from the property in suit. Defendants Nos. 2 and 3 claimed to be the true heirs of the plaintiff's husband, and they denied the plaintiff's rights altogether. THEy also set up title by adverse possession.

(2.) ON the merits the plaintiff's claim to heirship of her husband has been recognised in all the Courts; but the lower appellate Court has ordered that her suit should be dismissed on the grounds of the adverse possession of the defendants, and that contention was upheld on second appeal. The plaintiff now comes in appeal under the Letters Patent.

(3.) THIS Court had to deal with a similar question in Bhogilal v. Ratilal (1938) 41 Bom. L. R. 497. The question there was whether a certain suit interrupted possession which was otherwise adverse, and the suit was one for a declaration of title with a prayer for ejectment. In fact the possession did not change in any way; and in the course of the judgment Mr. Justice Wassoodew said (p. 504) : If therefore Bai Suraj's possession was initially adverse to the true owner, the mere declaration of the plaintiff's title neither deprived her of that possession nor altered its character. The declaration in the view we take instead of disturbing Bai Suraj's possession emphasized the fact of its adverse quality. It is true that their Lordships were there dealing with the declaratory aspect of the decree. But in fact it was a decree in ejectment, and for ourselves we cannot see why the fact of ejectment being ordered should make any difference. Surely what counts is not the order for ejectment but the actual ejectment or cessation of possession. I may remark that in the course of the judgment Mr. Justice Wassoodew refers to two cases of this Court [vasudeo Atmaram Joshi v. Eknath Balkrishna Thite (1910) I. L. R. 35 Bom. 79, s. c. 12 Bom. L. R. 956 and Rakhmabai v. Ramchandra (1920) 23 Bom. L. R. 301] as if they were cases in which the question involved was purely a question of the effect of a decree as interrupting adverse possession. But in both those cases it appears that the decree was in fact followed by an interruption of possession, though it was not the execution of the decree that interrupted it. We have not been referred to any reasoned decision that a decree for possession even when followed by an unsuccessful execution must be deemed as a matter of law to have the effect of either interrupting possession or altering its character, and we do not think that there is ever likely to be any such decision. In our opinion it is purely a question of fact to be decided in the circumstances of each case.