JAI KRISHNA Vs. BABU

JUDGEMENT

(1.) 1. The facts in this case are established and the only question is whether the appellant acquired a title to the land in dispute by adverse possession or not. The appellant is an occupancy tenant of Mouza Sindi Vihiri, and the respondents are the proprietors of the adjoining village of. Narsingpur. The land in dispute is between the khud-kasht field of the respondents and the appellant's occupancy field, the village boundary being the boundary between the two fields. There was a stone bandhi fixing the boundary, and the appellant was in possession of the disputed portion for a number of years. Subsequently the village boundary was corrected by the revenue authorities and it was found that a portion of what should belong to the Narsingpur village was included in the appellant's field. The respondents thereupon demolished the stone bandhi and took possession of the portion which was found to be within the Narsinghpur boundary, and the appellant brought a suit for possession of the portion and for damages. He obtained a decree in the trial Court for possession and for part of the damages claimed. On appeal however the Additional District Judge, reversed the decree and dismissed the suit. A cross-objection about the extent of damages was dismissed. The plaintiff has now preferred this second appeal.

(2.) THE lower appellate Court has held that, although the appellant was in possession of the land for more than 12 years, both parties were in ignorance that this land was really within the Narsingpur boundary and that there was no animus possidendi on the part of the appellant. The Judge therefore held that there could be no adverse possession and he referred to Jugraj Singh v. Ratan (1886) 1 CPLR 37, Bhau Patil v. Sadoo Telee (1886) 1 CPLR 58 and Madhorao v. Mohkamchand (1891) 40 PLR 51 in this connexion. I am of opinion however that the view taken by the lower appellate Court is wrong and that it should have been held that the appellant was in adverse possession of the land in suit. It is true that a tenancy cannot be acquired by adverse possession and that a tenant cannot hold adversely to his landlord, but that is no reason for holding that a tenant cannot hold land adversely to a third party though if he does gain a title by such adverse possession, he acquires a title not for himself, but for his landlord. For this view I would refer to Nuddyarchand Shaha v. Meajan (1884) 10 Cal 820. Of the cases cited by the lower appellate Court, Jugraj Singh v. Ratan (1886) 1 CPLR 37 and Bhau Patil v. Sadoo, Telee (1886) 1 CPLR 58 refer to cases of a tenant and his own landlord, and it is held that a tenant cannot acquire a right by adverse possession against his landlord. In Madhorao v. Mohkamchand (1891) 40 PLR 51 it was held that : if a resident of one village cultivates land situate in another village without the landlord's knowledge, the land is not in the adverse possession of the landlord of the former village.

(3.) IN the present case it must, I think, be held that the appellant never acknowledged the title of the respondents with whom he had no privity of contract and that he held the land as his own tenancy land and as such adversely to the respondents who were not his landlords. Differing from the lower appellate Court therefore I find that the appellant acquired a title by adverse possession. No argument was addressed to me as regards the extent of damages and looking to the circumstances of the case I am of opinion that the amount allowed by the trial Court, viz., Rs. 75, was sufficient and that the claim for Rs. 250 made by the appellant was exaggerated. I see no sufficient reason therefore for enhancing the amount. I therefore set aside the decree of the lower appellate Court and restore the decree of the trial Court granting the plaintiff-appellant a decree for possession and for Rs. 75 as damages. The respondents will bear two-thirds of the costs of the appeal in both Courts whilst the appellant will bear the costs of his cross-objection in the lower appellate Court. Costs of the suit will be borne as ordered by the trial Court.