HAJI MAQBUL HUSAIN Vs. HAJI AHMAD HUSAIN

JUDGEMENT

(1.) The suit out of which this appeal arises relates to a small plot of land in the City of Bareilly. The plaintiffs claimed as owners of the land alleging that they had been dispossessed by the first defendant, Hafiz Ahmad Husain, who had built a shop on the plot. They accordingly asked for restoration of possession with demolition of the shop as well as for damages and mesne profits. The Municipal Board of Barelly applied to be and was made a defendant during the progress of the suit. The defendants denied the plaintiff's ownership and pleaded adverse possession and limitation. The Trial Court decreed the suit and two appeals were preferred to the lower Appellate Court by Hafiz Ahmed Husain and the Municipal, Board respectively.

(2.) The learned Subordinate Judge found oh the evidence that the title in one- third of the land was with the plaintiffs. He found that the plot had been for many years lying unoccupied and that the Municipal Board had been using it for the deposit of refuse. He found, however, that this use of the land by the Municipal Board did not amount to adverse possession or to the dispossession of the plaintiffs. He found that the Municipal Board did in fact take adverse possession of the land some ten years before, the suit when they made it fiucca. This, however, was within limitation. In 1913 the Municipal Board sold the land to the defendant, Hafiz Ahmed Husain, who erected a shop upon it. An issue was argued before the learned Judge with reference to Section 51 of the Transfer of Property Act. The learned Subordinate Judge held that the respondent, Hafiz Ahmed Husain, being a transferee of the plot in suit, made the improvement upon it believing in good faith that he was absolutely entitled thereto. He, therefore, made an order under Section 51 requiring the plaintiffs to transfer their share in the land to the defendant at the market-value which he decided to be Rs. 40.

(3.) Against this decree the plaintiffs appeal. They have not appealed against the appellate decree passed on the appeal by the Municipal Board, and the question was raised at the hearing, though not strongly pressed, as to whether this decree might not operate as res judicata. It appears to me that it cannot do so. The Municipal Board, if it ever had any interest in the land, has parted with that interest to the first respondent. The only relief granted to the plaintiffs or asked for by them was a relief against Hafiz Ahmed Husain. They complain that the relief given them is inadequate and hence their appeal. As they require no relief against the Municipal Board they had no occasion to appeal against the decree passed en the Board's appeal.