KUNJI Vs. BIYAZ HUSAIN

JUDGEMENT

(1.) This was a suit for recovery of possession of land in the abadi of a village and for demolition of certain buildings constructed thereon. The plaintiffs are co- sharers in the village. They alleged that the building in question was situated upon two plots of land, one of which belonged to them and the other belonged to another group of zamindars who refused to join in the suit and therefore have been impleaded as pro forma defendants. Their case was that about 7 years before the suit one Mt. Faqaran Jan began to construct a room on the land in dispute and when the zamindars came to know of this, they raised objections and the construction was stopped. Subsequently, the other walls, about three feet in height, have been lying incomplete for five or six years. Then about two months before the suit the defendants began to build a mosque on the land in dispute without having obtained a permission from the zamindars, and refused to stop the construction when the zamindars remonstrated.

(2.) The defence was that the mosque had been built about 24 years before the institution of the suit by one Mt, Nasiban who had obtained permission from the zamindars of that time for building the mosque. Ever since its construction the Moslems of that village and neighbouring villages used to offer their prayers at the mosque. They denied that any new mosque had been built recently but alleged that the old mosque had become delapidated and had partly fallen down and they had merely reconstructed or repaired it recently. They denied that the plaintiffs had any right to get the mosque demolished. They further pleaded that the plaintiffs have not been in possession of the land within 12 years before the institution of the suit and therefore their claim was barred by time. The parties agreed that they would not produce any oral testimony and that the Court should decide on the basis of documentary evidence after inspection of the locality. The learned Munsif therefore made a local inspection and recorded his notes. The principal issue was whether the plaintiffs have not been in possession of the land, on which the mosque is built, for more then 12 years before the suit and whether the suit was barred by time.

(3.) The trial Court came to the conclusion that the plaintiffs case was substantially correct and that the mosque, as it stands at present, had been newly constructed and only the lower portion of it is about 10 years old that the whole of the mosque lies within the plaintiffs zamindari. He held that it was for the defendants to have proved that they had been in adverse possession of the land for more then 12 years before the suit. There was no documentary evidence that the mosque had been built with the permission of the zamindars. The Court accordingly came to the conclusion that the suit was not barred by limitation and decreed the plaintiffs claim. The defendants appealed and the learned District Judge took the view that the matter should be decided upon a strictly literal interpretation of the pleadings As the plaintiffs clearly alleged their dispossession within two months of the filing of the suit, Art. 142, Lim. Act, was applicable and it was incumbent upon the plaintiffs to prove that they had been dispossessed within 12 years. He further observed that the defendants never expressly raised the question of adverse possession as they had alleged that the mosque had been built 24 years ago with the permission of the zamindars. He held that the suit was barred by limitation and dismissed the plaintiffs claim. When the plaintiffs came to this Court in second appeal the case was originally heard by a learned Single Judge who agreed with the District Judge that Art. 142, Lim. Act, was applicable, but as there was no definite finding by the lower appellate Court that the plaintiffs had been dispossessed or had discontinued possession more then 12 years before the suit, he remitted an issue to the Court below for a definite finding on the question whether or not the plaintiffs were dispossessed or had discontinued their possession 12 years before the suit. The Court below has now submitted its finding which is as follows: I have not the least doubt in my mind that the case for the defendants- respondents is true and that the mosque being much more then 12 years old, the plaintiffs were dispossessed long before the 12 years preceding their suit.