ALOPI Vs. GAJADHAR PRASAD

JUDGEMENT

(1.) This second appeal arises from a suit brought by Pundit Gajadhar Prasad and others who are unquestionably the part owners of a muhalla in Allahabad City. They sued the present appellants on the allegations that the appellants had been permitted by them to occupy a certain site in the muhalla but had recently made some encroachments on land of the plaintiffs in the neighbourhood in consequence of which the plaintiffs no. longer wished to permit them to occupy the land in dispute. The defendants-appellants denied the plaintiff's title, and their defence amounted to an assertion of title by adverse possession. Both the Courts below have decreed the plaintiffs suit.

(2.) The findings of fact have not been so clearly stated as they might have been, and the present suit was disposed of by the lower appellate Court in a judgment governing other appeals in which the circumstances were somewhat different. The learned District Judge however definitely found that while the plaintiff was a cosharer of the proprietary interest in the land on which the house in suit stands, yet that house had been in the " actual or constructive possession of the defendant Alopi and his predecessors-in-interest for a number of years. " He then went on to discuss the question of whether the possession of the appellants had been that of a licensee as claimed by the plaintiff or whether it was adverse. There was no direct evidence to show in what manner the appellants possession had started, and the Judge after discussing the case law on the question of whether in these circumstances possession could be held to be adverse or not came to a decision, which was based on the case of Anand Sarup V/s. Chawwa [1916] 34 I.C. 952 that the possession was not adverse. A plea which appears to have been raised in the lower appellate Court in the alternative that possession was by license and the license could not be revoked because the appellants had a permanent structure on the land in dispute was also disallowed on the ground that it was not proved that the appellants had ever received a license to build.

(3.) It has been argued that the decision of the lower appellate Court in regard to adverse possession is incorrect. In the case of Bhaddar V/s. Khairuddin [1905] 29 All. 133 it was held by a Bench of this Court that a person who was neither an agricultural tenant nor a village handicraftsman, but who was in possession of a house in the abadi which he and his predecessors-in-title had held for considerably more than twelve years without paying rent or acknowledging in any way the title of the zamindar to the site upon which it was built, had acquired an absolute ownership of the site. Sir John Stanley in his judgment remarked that the reasonable inference from the long uninterrupted possession and enjoyment of the property by Bhola and his predecessors-in-title was that they had acquired the absolute ownership either by a grant; or by adverse possession. The property there was within the Municipal limits of the city of Allahabad, as it is in the present case, and no doubt this passage in the judgment suggested to the appellants their alternative plea of a license to build, which was no part of their original defence. In a later decision in Incha Ram V/s. Bande Ali Khan [1911] 33 All. 757 a Pull Bench of this Court held that in a village which was not a purely agricultural village the defendants, who were inn-keepers and tobacco sellers who had not paid rent to the zamindar or acknowledged his title in any way, had been in adverse possession and had acquired a title. It. has been sought in argument to distinguish both these cases from the present one. The case of Bhaddar V/s. Khairuddin appears however to have been very similar. There appears to have been no definite evidence either that a license had been given by the zamindar or that the defendant had specifically denied the zamindars title. It is true that in the present case the appellants themselves had not been in actual possession of the property for the whole of the period for which they have been found to have been in constructive possession, because they acquired the house by a deed of gift from a person whose title to it has not been proved; but if their predecessors possession was adverse this fact will make no difference.