ABDUL NABI SAHIB Vs. BAJAN SAHIB

JUDGEMENT

(1.) An interesting question of law arises for decision in this second appeal. Defendant 1 is the appellant. The suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and the performance of the religious services which are referred to in the plaint. It is conceded by the parties that the property which is the subject-matter of the litigation was originally granted by the Nawab of the Carnatic to one Nirgum Bi, the mother of the plaintiff Roshan Bi. The service to be performed by the inamdar was connected with the celebration of the mohurrum every year. Nirgum Bi executed a document, Ex. l, on 25 October 1873. This is described as "guardian and dharmakartha kararnama" and it was executed in favour of Nirgum Bi's son-in- law Dastagir. The recitals in this document are that Dastagir is the only senior male member connected with the family who can be relied upon to manage the properties because on the date of the document Roshan Bi and Budan Khan, the two other children of Nirgum Bi, were minors. The document conferred a right upon Dastagir to manage the properties and imposed the duty on him to discharge the religious functions annexed to the properties. This has been construed by the trial Court as a document by which Dastagir was appointed agent by Nirgum Bi, and the appellant's learned advocate although he does not concede this position, does not think it necessary to question the finding for advancing the argument which he is addressing in second appeal. Dastagir was the father of defendant l. Defendant 2 is impleaded as the son of defendant 1. The second daughter of Nirgum Bi is Roshan Bi the plaintiff. Pending suit she died and thereupon her son's widow Amina Bi and her son Rajan Sahib who is the grandson of Roshan Bi were brought on record as the legal representatives of the deceased plaintiff 1 and impleaded as plaintiffs 3 and 2 respectively. Defendant 1 contested the suit. He denied plaintiff 1's claim and pleaded inter alia that the suit for injunction was not maintainable because possession was with him and not with plaintiff 1 on the date of suit. According to him, his father Dastagir was the donee of the properties under Ex. 1 and on the death of Dastagir the ownership devolved on him being the only son of Dastagir. As an alternative plea, he alleged that he had acquired title by adverse possession. A third plea that was raised by him which is the only plea that is relevant for the purpose of this second appeal was that the suit for a mere injunction was not maintainable, because on the date of suit possession of the property was with defendant 1 and not with plaintiff 1. The appellant's learned advocate has confined his attention to this question of law in the first instance, though he has other contentions to urge.

(2.) The learned Subordinate Judge decreed the plaintiff's suit. According to the learned Judge, Ex. 1 was a document by which an agency was created and by which defendant 1's father Dastagir was appointed the agent of Nirgum Bi, his mother-in-law, for the purpose of managing the suit property. On the death of Nirgum Bi, the right of ownership that was vested in her devolved on her only surviving daughter Roshan Bi. On the death of Dastagir, the agency devolved upon defendant 1 who continued to manage the property as the agent of the then owner Roshan Bi who was his maternal aunt. Although actual physical possession of the property was vested in defendant 1, yet because defendant 1 happened to be the agent of Roshan Bi and he was enjoying possession in that capacity, legal possession must be presumed to be vested in Roshan Bi herself. In his judgment, the learned Subordinate Judge first considers the question of title and finds that title was vested in Roshan Bi, and then he says as follows: At the most defendant 1 was only an agent. The possession of the agent must be treated as the possession of the principal. I, therefore, hold that the plaintiffs and defendants are not cosharers, that plaintiff 1 must be deemed to have been in possession on the date of the suit, that after her death her grandson, plaintiff 3 who is her only heir under the Mahomedan law must be deemed to be continuing in possession.... He goes on to say that in the circumstances, the possession of the defendants cannot be regarded as adverse possession. From this it is quite clear that he was of the view that actual possession was with the defendants. For the reason that constructive possession was vested in the plaintiffs, he found against the defendants on issue 1 framed at the trial which was whether the plaintiff's suit for a bare injunction without any relief for recovery of possession is maintainable. On appeal, the learned District Judge confirmed this decision in a very brief judgment. The appellant's learned advocate wishes to contend that this judgment is not in accordance with law because the points for determination have not been formulated and dealt with by the lower appellate Court. But for the purpose of the contention actually pressed in second appeal, the judgment does contain sufficient material. The learned Judge held that: The learned Subordinate Judge's finding is correct that Roshan Bi, who filed this suit was in possession and she having died pending suit her grandson and her son's wife (plaintiffs 2 and 3) are now in possession. It is thus clear that the learned Judge has in effect adopted the view taken by the trial Court, which, as already pointed out is that although actual physical possession was vested in defendant 1 on the date of suit, yet, since he was having such possession in his capacity as agent of plaintiff 1 Roshan Bi, legal possession must be presumed to be in Roshan Bi. Consequently the suit for a mere injunction without asking for possession was maintainable.

(3.) The main question for consideration is whether the view taken by the Courts below that Roshan Bi, plaintiff 1, had constructive possession through her agent, defendant 1, is correct. The learned Subordinate Judge states in his judgment that as the result of ill-feeling between the parties and by reason of prior litigation between the parties, namely, O.S. NO. 52 of 1935 and A. S. NO. 227 of 1936, Roshan Bi had revoked the agency of defendant l. There is also no doubt whatsoever, that if an agency was created as the result of the execution of Ex. I, defendant 1 in any event had renounced that agency, because he was setting up title by adverse possession; and he was refusing to surrender possession to Roshan Bi when she demanded possession. In such circumstances, there cannot be any doubt whatsoever that the agency was not subsisting on the date that the suit was filed. If the agency was not subsisting, then the possession of defendant 1 cannot be regarded as possession of Roshan Bi. The trial Court seems to have arrived at the conclusion that when the agency was terminated by the principal Roshan Bi, she must be regarded as having obtained possession in her own right. This is not a correct statement of the position. Where the property is in the possession of an agent during the subsistence of the agency, it is not correct to say that the moment such an agency is terminated, legal possession of the property must be deemed to pass back to the principal although the property continues to be in the enjoyment of the agent. The appellant's learned advocate wants to con-tend that even otherwise, for meeting the argument that a suit for a mere injunction cannot be maintained if the plaintiff has not got possession of the property, it would not be sufficient to show that the plaintiff has constructive possession, there must be actual possession. Especially, in a case where the dispute is between principal and agent, the theory of constructive possession cannot be relied on by the principal who is the plaintiff for the purpose of meeting a contention of this description raised on behalf of the defendant who is the agent. But it is not necessary to discuss this aspect of the question in view of the fact that the only possible conclusion that can be arrived at from the findings of the trial Court which have been adopted in their entirety by the lower Appellate Court is that on the date of the suit plaintiff 1, and consequently her legal representatives plaintiffs 2 and 3, could not have had legal possession of the suit property.