SATISHCHANDRA DE Vs. MADANMOHAN JATI

JUDGEMENT

(1.) In my opinion this appeal is concluded against the appellants by the findings of fact. The suit is to recover possession of certain lands from the appellants, who are mere trespassers. It has been found that the plaintiffs and their predecessors, for a very long time, had been in possession of the lands in suit, with the assent of the whole body of maliks, before they were dispossessed by the appellants in 1923. It follows that their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing: see per Lord Watson in Sundar V/s. Parbati [1889] 12 All. 51, and there was an issue raised and evidence upon which this finding could reasonably have been based.

(2.) In these circumstances, it matters not, for the purposes of this suit, whether the plaintiffs possession can be ascribed to a tenancy or to a transfer of the maliki interest, for the defendant-appellants, who were trespassers, were not entitled to dispossess the plaintiffs of the lands in 1923, and the plaintiffs, who were found to be in possession within 12 years of the suit, are entitled to recover the entirety of the lands from the appellants upon the footing that they were in peaceable possession of the premises before the defendants ousted them therefrom: Mohabeer Pershad Singh V/s. Mohabeer Singh [1881] 7 Cal. 591, Currimbhoy & Co. <JGN>Page</JGN> 2 of 2 Ltd. V/s. L. A. Creet Lachho V/s. Har Sahai [1888] 12 All. 46, Sundar V/s. Parbati [1889] 12 All. 51, Ismail Ariff V/s. Mahomed Ghous [1893] 20 Cal. 834, Pemraj Bhavaniram v, Narayan Shivaram [1882] 6 Bom. 215 (F.B.), Krishnarav Yashvant V/s. Vasudev Apaji Ghotikar [1884] 8 Bom. 371, Shyama Charan Ray V/s. Surya Kanta Acharya [1910] 6 I.C. 806, Narayana Bow V/s. Dharmachar [1902] 26 Mad. 514, Beni Madhab Christian V/s. Raj Chandra Pal [1909] 2 I. C. 202, Saho-dra Kuer V/s. Gobardhan Tewari [1917] 2 Pat. L.J. 280 and Asher V/s. Witlock [1865] 1 Q.B. 1: see also Pollock and Wright on Possession, pp. 22 and 93. No doubt there are authorities, among them Nisa Chand Gaita V/s. Kanchiram Bagani [1899] 26 Cal. 579, to the effect that mere possession for less than 12 years would not entitle the person dispossessed by a trespasser to recover possession otherwise than in the manner provided by Section 9, Specific Relief Act (l of 1877). But in numerous decisions it has been pointed out that these authorities are based on what I also, with all due deference to the learned Judges who decided them, conceive to be a misapprehension of the judgment of the Judicial Committee in Wise V/s. Ameerunnissa Khatoon [1879] 7 I.A. 73, and if the only evidence of the plaintiff's title consisted of their peaceable possession, though unexplained, I should hold without hesitation that the plaintiffs were entitled to recover possession against the defendants who are trespassers.

(3.) In suits under Section 9, Specific Belief Act, questions of title are irrelevant, for, like the old assize of novel disseizin in Plantagenet times, Section 9 was enacted to afford a summary remedy against persons who had taken the law into their own hands and had ejected those in possession of land otherwise than through process of law.