GOLAM NAZAR Vs. ABBAS MOLLA

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the dismissal of their suit by the lower Appellate Court reversing the decree of the trial Court. The suit was brought on the 30 January, 1919 and was one for khas possession of a tank. The plaintiffs and the main defendants claim under the same landlords, it being admitted that the defendants Nos. 23 to 26 have the maliki right in the tank in suit. In 1916, the landlords settled the tank with the plaintiffs. In 1904 it appears that the landlords had threatened the defendants that the tank would be settled with a third party. In 1914 they advertised for settling the tank and at the auction defendants also bid. In these circumstances the contention of the plaintiffs is that the learned Judge has misdirected himself in law in finding that the landlords having been out of possession for over 12 years the plaintiffs suit cannot be maintained.

(2.) The case is admittedly one where the defendants are already tenants of the land-lords. The defendants homesteads adjoin this tank and if the defendants have been in possession of the tank the inference is particularly strong that they have been in possession of it either by some leave or license of the landlords or else under a claim that the tank is a part of the land to which they are entitled as tenants. The learned Judge has dealt with the case on the line of decisions applicable to what is sometimes called adverse possession of limited interest. The learned Vakil for the appellants contests the question whether upon the facts as found by the learned Judge the defendants possession has been continuous and adverse for the whole of the 12 years.

(3.) Now, the learned Judge has found that the defendants have always been in possession of the tank in question. It is. quite clear that he means to find against any notion of mere user with leave and license. That matter may be put on one-side altogether. The objection taken to the finding is that as the landlords advertised for tenants and the defendants bid at the auction, this shows that the possession is not adverse in its character That matter may be looked at in one or other of two ways. It may be looked at as a piece of evidence upon the question whether the defendants are in possession claiming to be tenants or whether in possession asserting that the landlords had no right whatever. The learned Judge has found against the question of leave and license on the general facts of the case If the matter be looked at from the point of view of acknowledgment it is quite clear that there was no sufficient acknowledgment under Section 19 of the Limitation Act; and there was no disturbance of possession by the holding of this auction Various motives are possible to explain why the tenants should bid it such an auction and we are wholly unable to find that incidents of this auction show that the learned Judge was wrong in his finding of fact or that he must have misdirected himself on the point of law. It has been contended that in this class of cases the whole question arises under Art. 144 of the Limitation Act and, therefore, if it can be shown that at any period the defendant's possession was not adverse the plaintiffs must succeed. Now it is undoubtedly the law that cases of this character are not outside the scope of Art. 142. The position is this: if the person encroaching upon other land is not a tenant then the mere fact of his open and continuous encroachment would prima facie be possession adverse to the fullest extent against the landlord. Because he is a tenant, it is presumed in the landlord's favour that the possession is only under a claim of a limited right. Now if the possession is under a claim which is adverse to the landlord though only to a limited extent then for the purpose of the right which the tenant is claiming the possession of the tenant is no longer the possession of the landlord.